No. 81-110 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

DUNCAN PEDER McKENZIE, JR., 

Petitioner and Appellant, 

VS. 

GLENN OSBORNE, Sheriff of 

Cascade County, Montana, 

JAMES BLODGETT, Acting Warden, 

Montana State Prison et al., 

Respondent. 

Appeal from: District Court of the Eighth Judicial ~istrict, 

In and for the County of Cascade. 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Barney Reagan argued, Cut Bank, Montana 

Charles L. Jacobson, Conrad, Montana 

Timothy K. Ford, Seattle, Washington 

John C. Boger, New York, New York 

For Respondent: 

Hon. Mike Gzeely, Attorney General, argued, and 

Chris Tweeten, Assistant Attorney General, argued, 

Helena, Montana 

Douglas L. Anderson, County Attorney, Conrad, Montana 

Submitted: June 8, 1981 

Decided: October 29, 1981 

~iled: OCT 2 9 198f 

p. 7* 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal from an order of the District Court, Eighth 

Judicial District, Cascade County, denying the petition of 

Duncan Peder McKenzie, Jr. for relief under section 46-21- 

101, et seq., MCA (post-conviction relief) and section 46- 

22-101, et seq., MCA (habeas corpus) . 

Defendant Duncan Peder McKenzie, Jr. was convicted of 

the crimes of deliberate homicide and aggravated kidnapping 

by jury verdict in the District Court of Cascade County and 

thereafter was sentenced to death. The convictions and 

sentence were affirmed on appeal by this Court. State v. 

McKenzie (1977), 171 Mont. 278, 557 P.2d 1023 (hereafter 

McKenzie - I). 

Thereafter, the United States Supreme Court granted 

certiorari, vacated this court's judgment and remanded the 

cause to us for further consideration in light of Patterson 

v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 

On remand to this Court, we gave consideration to the 

entire case, saying: 

"We have reconsidered the entire case, not 

only in the light of Patterson, but aiso on 

all issues raised in the original appeal to 

this Court. This opinion - constitutes this 

Court's judgment in the entire case following 

remand." State v. McKenzie (1978) , 177 

Mont. 280, 288, 581 P.2d 1205, 1210 (McKenzie 

- 11). 

Following our affirmance of the conviction and sentence 

in McKenzie - 11, the defendant sought relief under the Sentence 

Review Division of this Court, under the provisions of section 

46-18-901, et seq., MCA. His petition for review there was denied. 

His attempted appeal of that decision to this Court was also 

denied, since no appeal is provided in our statutes from 

decisions of the Sentence Review Division. 
Defendant again petitioned for certiorari to the United 

States Supreme Court, and it was granted. The case was 

again remanded to us for further consideration in the light 

of the United States Supreme Court decision in Sandstrorn v. 

Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. 

The remand citation is McKenzie v. Montana (1979), 443 U.S. 

903, 99 S.Ct. 3094, 61 L.Ed.2d 871. 

When the case came to us on the second remand, this 

Court again gave full consideration to the case, again 

saying: 

"We have reconsidered the entire case, not only 

in the light of Patterson and Sandstrom, but also 

on all issues raised in the original appeal. This 

opinion constitutes this Court's judgment in the 

entire case following remand." 608 P.2d 428, 436, 

37 St.Rep. 325, 328. 

The report of our third consideration is in State v. 

McKenzie (1980), - Mont. , 608 P.2d 428, 37 St.Rep. 

(hereafter McKenzie - 111). 

Following McKenzie 111, defendant again sought certiorari 

from the United States Supreme Court, but his petition was 

denied. McKenzie v. Montana (1980) , - U.S. , 101 

S.Ct. 626, 66 L.Ed.2d 507 (Justices Marshall and Brennan 

dissenting). 

Having thus exhausted the appellate process, McKenzie 

on January 5, 1981, filed in the District Court of the 

Eighth Judicial District, his petition for post-conviction 

relief or habeas corpus. That is the petition with which we 

are now concerned. It is from the denial of that petition 

that we now enter upon McKenzie - IV. 

Counting the defendant, there are presently in Montana 

three persons facing the sentence of death following their 

criminal convictions by juries. All three cases have been 

before this Court on appeals from denials of post-conviction 

relief in recent months. Coleman v. Montana (1981), 
Mont . I - P.2d - , 38 St-Rep. 1352, and Fitzpatrick v. 

Montana (1981), - Mont. P.2d , 38 St.Rep. -I - - 

1448 (Fitzpatrick - 1111, have already preceded this opinion. 

In the two other cases, some identical issues have been 

decided. We will rely on and refer to them to some extent 

in this opinion, where the discussions are pertinent. 

One of the issues that has arisen in all three cases, 

and the first issue we come to here, is the extent of review 

to which the defendant is entitled under post-conviction 

relief on matters that have been raised and litigated in the 

course of the appellate process. 

We state that the extent of review is the first issue, 

although in the briefs of both McKenzie and the State, the 

first question raised is whether this Court has jurisdiction 

of an appeal from a decision of the District Court in a 

post-conviction relief case, under section 46-21-101, et 

seq., MCA. Both parties concede that either party has a 

right to appeal from a district court order entered on such 

a petition under section 46-21-203, MCA. We agree that an 

appeal lies in this case. 

With respect to the extent of our review, and indeed of 

the review of the District Court, McKenzie contends in this 

case that the ~istrict Court erred in refusing to review 

issues raised by McKenzie in his petition, by holding that 

the previous decisions of this Court in the McKenzie cases 

raised a "res judicata bar" and "that issues previously 

considered on direct appeal are not appropriately raised in 

this petition." McKenzie contends that the misapplication 

by the District Court of res judicata principles to the 

post-conviction action affected the entirety of the District 

Court's decision and for that reason should be reversed. 
The State responds that McKenzie is relying on dicta 

found in earlier cases in this Court and the true rule is 

that this Court will refuse to reconsider issues on which it 

has previously ruled; that the Post-Conviction Relief Act is 

intended only to assure that a convicted felon has an 

opportunity, one opportunity, to present material issues 

affecting his conviction. 

In the most recent Coleman case, supra, 38 St.Rep. at 

1359, this Court held that res judicata cannot be applied to 

deprive a convicted defendant of his right to file a postconviction petition, but the rule may be used to bar the 

rehearing of issues already litigated, citing Sanders v. 

United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 

148. Again, in the most recent Fitzpatrick case, this Court 

noted that the District Court had granted the State's motion 

to dismiss six of Fitzpatrick's claims on the ground that 

the claims had been previously decided on the merits and 

were res judicata. In Fitzpatrick, 38 St.Rep. at 1451, this 

Court held that the decision of the district judge not to 

review previously litigated issues would not be disturbed 

absent a clear showing of abuse of discretion, again relying 

on Sanders, supra. 

McKenzie relies here upon dicta contained in State v. 

Standley (1981), - Mont . , 626 P.2d 248, 38 St.Rep. 

522, and In Re McNair (1980), Mont . , 615 P.2d 916, 

37 St.Rep. 1487. In those cases, we stated that a petition 

for post-conviction relief under section 46-21-102, MCA, is 

not subject to objections based on res judicata, laches, or 

the statutes of limitation. Nonetheless, in those two 

cases, post-conviction relief was denied, in McNair for a 

delay of 8 1/2 years in asking for the relief, and in Standley 
for a delay of 25 years. In McNair, we said such a delay 

raised the question of good faith on the part of the petitioner 

and in Standley, we pointed out the impracticability of 

retrial of Standley if his original plea of guilty were 

allowed to be withdrawn. 

Nonetheless, in Spurlock v. Crist (1980), Mont . 

, 614 P.2d 498, 501, 37 St.Rep. 1146, 1149, we refused 

to consider in a habeas corpus proceedings in this Court 

issues that had been previously argued and decided on 

appeal. In In Re Quigg (1976), 168 Mont. 512, 544 P.2d 441, 

cert.denied 425 U.S. 994, 96 S.Ct. 2207, 48 L.Ed.2d 818 

on a netition for post-conviction relief, we.refused 

to consider issues previously ruled on in the appeal. 

The seeming double-mindedness of our stances on this 

point is more illusory than real. We cannot fault counsel 

for the defendants, whose duties are to explore every nuance 

of legal defense on the part of their clients, consonant 

with ethics and the proprieties of law, in raising such 

issues. It should be clear, however, that the broad statements 

made in McNair and Standley, supra, are not to be followed 

here. To be clear about it, we do not reject our statements 

in Standley and McNair, supra, that res judicata, laches and 

statutes of limitations are not a bar to post-conviction 

relief, or to habeas corpus, in a proper case. We do say 

that the concept of finality, when the appellate process has 

been exhausted, or the judgments of conviction have become 

final, must be respected as to issues which have been fully 

and finally litigated. Neither the district courts nor we 

are required to turn over ground already plowed, even in 

death penalty cases. Successive motions and petitions 

directed again and again to the same issues serve no judicial, 

social or individual purpose. 
The problem of post-conviction relief as affected by 

the finality of judgments has not escaped the attention of 

the American Bar Association in its Standards for Criminal 

Justice (2d ed.). It has adopted a standard that deals with 

post-conviction applications in the same judicial system 

that conducted the original prosecution, as for example,a 

state prisoner seeking post-conviction relief in the state 

courts. Standard 22-6.1., ABA Standards for Criminal Justice 

(2d ed. ) . We adopt from that standard, as rules to be followed 

by district courts in this and like cases, and by us for 

decision in this case, the following: 

(A) Any issue that has been fully and finally 

litigated in the proceedings leading to the 

judgment of the conviction should not be relitigated 

in post-conviction proceedings. 

(B) An issue should be deemed fully and finally 

litigated when the highest court of the state to which 

a defendant could appeal his right has ruled on the 

merits of the question. 

(C) Finality, when raised and shown by objection or 

affirmative defense on the part of the state is a 

bar to the relitigation of fully and finally litigated 

issues. 

We will further follow the same ABA Standard by determining that claims advanced in post-conviction applications 

shall be decided on their merits, even though they might 

have been, but were not fully and finally litigated in the 

proceedings leading to judgments of conviction, unless 

barred because of abuse of process. Abuse of process occurs 

where an applicant raises in post-conviction proceedings a 

factual or legal contention which the petitioner deliberately 

or inexcusably failed to raise in the proceedings leading 

to conviction, or having raised the contention in the court, 

failed to pursue the matter on appeal. (ABA Standards for 

Criminal Justice (2d ed.) Standard 22-6.1.) Having stated 
those rules, which we consider were implicit in our former 

rulings, it is clear that this Court should not and will not 

consider previously-litigated issues in this appeal and that 

we will sustain the District Court for refusing to consider 

fully and finally litigated issues in the post-conviction 

proceedings before it. See our discussion on this point in 

Fitzpatrick - 111, 38 St-Rep. at 1450-51. 

Having so determined, we proceed to examine the issues 

raised in McKenzie's petition for post-conviction relief. 

It will be noted that some of the issues have been considered 

by this Court not once but two and three times. In all the 

annals of criminal justice in this state, we find no case in 

which a single defendant has received more tender legal care 

(using "tender" in the sense of careful and sensitive 

handling). 

I. Search and Seizure 

Petitioner contends that the District Court, in considering his application for post-conviction relief, did not 

address his factual allegations respecting: (1) unwritten 

sworn testimony purporting to support the issuance of search 

warrants; (2) the overbreadth or lack of specificity in the 

search warrant; and, (3) lack of probable cause for issuing 

the search warrants, and on those bases, contends he should 

have a hearing. The District Court refused to consider the 

issues further because of earlier decisions by this Court. 

First we note that at the District Court level, in the 

criminal proceedings against him, defendant was granted a 

hearing on his motion to suppress the evidence produced by 

the search warrants and the order of suppression was denied. 

That denial of suppression was before this Court at all 

times when the McKenzie cases were being considered. We 

further note: (a) issue no. 1 under this heading was 
considered, fully litigated and decided by this Court in 

McKenzie I, 557 P.2d at 1034, 1035; McKenzie - 11, 581 P.2d at i211, 

1212; and McKenzie - 111, 608 P.2d at 437. (b) issue no. 2 

above was considered, fully litigated and decided by this 

Court in McKenzie - I, 557 P.2d at 1035; McKenzie - 11, 581 P.2d 

at 1212, 1213; McKenzie 111, 608 P.2d at 438. (c) issue no. 

3 above was considered, fully litigated and decided by this 

Court in McKenzie - I, 557 P.2d at 1034; McKenzie - 11, 581 P.2d 

at 1212; and McKenzie 111, 608 P.2d at 437, 438, 439. 

The claims of the petitioner with respect to the search 

and seizure category have been fully and finally decided on 

the merits. The District Court was correct in refusing to 

grant further hearings relating to those issues. We will 

not consider the issues further because of the finality of 

those earlier decisions. 

The District Court noted in its order denying postconviction relief that counsel for the petitioner had conceded 

at oral argument that further factual development was not 

required. Based on this concession, and the voluminous 

record in this case exploring these issues, the District 

Court found no denial of a full and fair hearing with respect 

to search and seizure. We agree. 

11. Mental Defect--Trial Bifurcation--Instructions 

In his application t~ the District Court, petitioner 

claims unconstitutional error against him in (1) the trial 

court's refusal to grant a bifurcated trial on the issue of 

his insanity/diminished mental capacity to commit the crime; 

(2) in refusing to appoint psychiatric experts to assist 

defense counsel and to testify for the defendant unless he 

submitted to an interview with an expert appointed by the 

court and unless reports of the interview by the experts 
were submitted to the court before the testimony was presented; 

and (3) in admitting the testimony of the prosecution's 

psychiatric expert relating to petitioner's exercise of his 

Fifth Amendment rights to remain silent in such interview. 

Petitioner's brief in this Court expands those allegations 

to argue further (4) it was error for this Court to rely on 

instructions given to the jury to cure the alleged error in 

permitting the prosecution's psychiatric expert to testify 

that defendant had remained silent. 

(a) The petitioner offers no authority under our law 

that a defendant as a matter of constitutional law is 

entitled to a separate jury trial on the issue of insanity 

or diminished mental capacity to commit the crime charged. 

Section 95-507(c), R.C.M. 1947, in effect at the time of 

petitioner's trial (now section 46-14-213(1), MCA), contemplates 

the issue to be decided "upon the trial." This Court held 

in State v. Olsen (1971), 156 Mont. 339, 343, 480 P.2d 822, 

824, that a defendant who gives notice of insanity as a 

defense is not entitled to a bifurcated trial. We hold the 

same rule applicable to a defense of mental disease or 

defect. 

(b) With respect to issue no. 2 in the above heading, 

there is a division of authority as to the right of an 

accused to expert investigation and psychiatric help under 

his Sixth Amendment rights, but the Ninth Circuit has held 

refusal of expert help does not violate due process through 

the Sixth and Fourteenth Amendments in state proceedings 

absent a showing of prejudice. Mason v. State of Arizona 

(9th Cir. 1974), 504 F.2d 1345. Here, petitioner has not 

alleged or shown any prejudice that resulted to him from 

the denial by the District Court in the criminal proceedings 
of the motion to appoint psychiatrists to aid counsel in the 

defense. 

(c) Under section 95-507, R.C.M. 1947, then in effect, 

(now section 46-14-213, MCA), it is provided that upon 

trial, any psychiatrist who reported under section 95-505, 

R.C.M. 1947, (now sections 46-14-202 and 46-14-203, MCA) may 

be called by either party. The statute provides that the 

jury may not be informed that the psychiatrist was designated 

by the court or by the superintendent of Warm Springs Hospital. 

In addition, both the prosecution and the defense may summon 

any other qualified psychiatrist to testify who has examined 

the defendant. In this case, during the criminal proceedings, 

when the court ordered the psychiatric interview, counsel 

for the defendant stated in open court that the defendant 

would exercise his right to remain silent as to any questions 

relating to the Lana Harding homicide. His silence was 

testified to by psychiatrists at the time of their appearances 

in court. 

The District Court, in discussing this issue, in the 

application for post-conviction relief, noted that the 

psychiatric witnesses drew no inference as to guilt or 

innocence, nor did they suggest such inference to the jury. 

The court noted that one of the psychiatric witnesses 

testified that since the petitioner would shed no light on 

the incident, he presumed the petitioner innocent. The 

District Court also pointed out that during the petitioner's 

trial, in court's instruction no. 43, the jury was told that 

it was to draw no unfavorable inferences from the petitioner's 

silence. "In short,' said the District Court, "nothing in 

the record shows that the State exploited the psychiatric 

testimony so as to burden the petitioner's Fifth Amendment 

right to remain silent." We agree and find no prejudice. 

-11- 
(d) In connection with issue no. 4 in the above heading, 

it was not error for the District Court to require the 

defendant to submit to a psychiatric interview in this case. 

Under section 95-505, R.C.M. 1947, then in effect, (now 

section 46-14-202, MCA) it is provided that the court may 

order such an examination when a defendant has filed a 

notice of intention to rely on the defense of mental disease 

or defect excluding responsibility, or if there is reason to 

doubt his fitness to proceed, or if there is reason to 

believe that mental disease or defect of the defendant will 

otherwise become an issue in the cause. In those circumstances, a court may order a psychiatric examination and, as 

the District Court noted, we stated in State ex rel. Sikora 

v. District Ct. of 13th Jud. Dist. (1969), 154 Mont. 241, 

245, 462 P.2d 897, 899, that the constitution does not 

"assure (a defendant) a right to so defend as to deny the 

state a chance to check into the truth of his position." 

(e) Further, with respect to issue no. 4 under this 

heading, whether it is error to rely on the general jury 

instructions to offset the effect of the psychiatrists 

testimony that the defendant remained silent during his 

examination, and the further contention that it is not 

sufficient to rely on such general instructions because 

there is an implied admission of guilt when a defendant 

relies on insanity/diminished mental capacity, in McKenzie 

- 111, 608 P.2d 455, 456, 457, this Court discussed fully the 

careful instructions given by the District Court in the 

criminal proceedings. We have already noted that the 

District Court specifically informed the jury that no 

inference was to be drawn from the defendant's remaining 

silent during a psychiatric interview. We therefore confirm 
the holding of the District Court with respect to the 

issues raised under this heading on petitioner's application 

for post-conviction relief. 

Before leaving this set of issues, however, we point 

out that in McKenzie - I, 557 P.2d at 1041, 1042, 1043, and 

again in McKenzie - 11, 581 P.2d at 1215, this Court answered 

the petitioner's attacks on the constitutionality of our 

statutes relating to the notice required when a defendant 

intends to rely on an insanity/diminished mental capacity 

defense, and the procedures to be followed thereunder. 

111. Admitted Exhibits--Conduct of Trial 

Petitioner's application for post-conviction relief 

also contended that he was denied constitutional rights in 

(1) the admission by the court into evidence in the criminal 

proceedings of inflammatory photographs of the victim, (2) 

in the District Court's changing of the order of trial and 

refusal to hold subpoenaed witnesses until the defendant's 

case in chief, (3) in permitting spectators to use recording 

devices in the courtroom, (4) in allowing an inflammatory 

and circus-like atmosphere to exist in the courtroom, and 

(5) in allowing family and friends of the victim to make 

emotional expressions toward the petitioner in the presence 

of the jury. 

(a) The contention with respect to inflammatory 

photographs was considered, fully litigated and decided by 

this Court in McKenzie 11, 581 P.2d at 1218, and in McKenzie 

(b) This Court found no error in allowing FBI agents 

to give expert opinion testimony prior to the completion of 

the chain of evidence upon which the opinion was based, in 

McKenzie - 11, 581 P.2d at 1219, and in McKenzie 111, 608 ' 
P.2d at 444. Petitioner's contention that the trial court 

in the criminal proceedings erred in failing to hold FBI 

agents for the duration of the trial was treated in McKenzie 

- 111, 608 P.2d at 446, 447. These issues have therefore 

been considered, fully litigated and decided. 

(c) The tape-recording issue was considered, fully 

litigated and decided in McKenzie - I, 557 P.2d at 1037; 

McKenzie - 11, 581 P.2d at 1124, 1125, and McKenzie 111, 608 

P.2d. at 446. 

(d and e) With respect to petitioner's contentions 

that a circus-like atmosphere prevailed in the criminal 

trial proceedings, and that the members of the family were 

allowed to give expression to emotional feelings and comments 

in the presence of the jury, we need only say there is no 

record in all the voluminous transcripts here to support 

those contentions, nor was a single.objection advanced by 

the petitioner's counsel in the criminal proceedings on 

those points. The District Court, in considering the 

application for post-conviction relief, pointed out that the 

jury had been instructed to decide the case solely upon the 

evidence, without regard to sentiment, conjecture, sympathy 

or compassion, and nothing in the record discloses the jury 

failed to follow that instruction due to the conduct of the 

trial spectators. We find no error therefore, on these 

points raised without support in the record. 

IV. Sandstrom Instructions 

The petitioner contends that he was denied due process 

in that (1) the trial court's instructions to the jury 

directed the jury to find elements of the offenses charged 

by the use of "presumptions" and "inferences" which shifted 

the burden of persuasion to the defendant and allowed the 

jury to adopt inferences which did not follow beyond a 
reasonable doubt from the facts on which they were based; 

(2) that the instructions contained numerous erroneous 

examples which (3) were designed to lead the jury to the 

inescapable conclusion of petitioner's guilt. In brief, 

petitioner contends that he has been treated inconsistently 

with our decision in State v. Wogamon (1980), - Mon t . 

, 610 P.2d 1161, 1165, 37 St.Rep. 840, 846. 

(a) In McKenzie 111, 608 P.2d at 456, et seq., this 

Court fully reviewed petitioner's contentions that his 

conviction and sentence should be set aside in the light of 

Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 

L.Ed.2d 39. The matter has been fully considered, litigated 

and decided by this Court. 

(b) Petitioner's contentions that the instructions 

contained erroneous examples and were designed to lead 

inescapably to defendant's guilt were part and parcel of our 

consideration under the Sandstrom case and McKenzie 111. 

Petitioner has not attempted to show in any way how the 

examples led the jury inescapably to his guilt and we find 

no such design, intentional or otherwise. 

(c) We do not agree that the holding in McKenzie I11 

is inconsistent with our holding in Wogamon. In Wogamon, we 

pointed out that the United States Supreme Court decision in 

Sandstrom had resulted in a spate of appeals to this Court 

claiming instructional error. We further showed in Wogamon 

that in all of the cases brought to us, except for the 

original Sandstrom decision and Wogamon, we had found no 

reason to set aside the convictions in those several cases 

on the basis of the Sandstrom instruction. Wogamon, 610 

P.2d at 1164. Nor can it be said that we have given petitioner a different kind of legal treatment than we provided 
Wogamon. In Wogamon, we applied the principles declared by 

the United States Supreme Court in- In Re Winship (1970), 397 

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and in Mullaney v. 

Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. 

We also declared that in finding harmless error in a Sandstrom 

instruction, "we must be able to agree as a Court that the 

offensive instruction could not reasonably have contributed 

to the jury's verdict." Wogamon, 610 P.2d at 1165. 

In the petitioner's case, in McKenzie 111, we found 

that the evidence of McKenzie's guilt was so overwhelming 

that the Sandstrom instructions could not possibly have 

contributed to petitioner's convictbn and that therefore the 

instructions were harmless error. The position of this 

Court in McKenzie I11 was not disturbed when the United 

States Supreme Court refused certiorari from the decision in 

McKenzie 111 (1980), 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 

507. True, two United States Supreme Court justices disagreed 

in a dissenting opinion. Nonetheless the majority of the 

Supreme Court found no reason when certiorari was sought 

with respect to McKenzie 111 to disturb the reliance of this 

Court on Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 

2174, 33 L.Ed.2d 1, to the effect that the constitutional 

infirmity is excluded where overwhelming evidence supports 

the conviction. 

Therefore, the District Court did not err in denying 

the petitioner's contentions under the Sandstrom instructions. 

V. Sufficiency of the Evidence 

Under this contention, petitioner claims that this 

court improperly rejected in McKenzie 111, 608 P.2d at 447- 

i48, his claim that there was insufficient evidence that 

Lana Harding's death resulted from a kidnapping or that she 

was tortured prior to her death. He further contends in 

brief that the standard applied by this Court in making that 

-16- 
determination has been repudiated as a matter of federal 

constitutional law in Jackson v. Virginia (1979), 443 U.S. 

307, 99 S.Ct. 2781, 61 L.Ed.2d 560. 

(a) Of course, the issue of the sufficiency of the 

evidence to support the verdicts that the defendant committed 

deliberate homicide by torture and that as a result of her 

aggravated kidnapping, Lana Harding died, has been fully 

considered, litigated and decided by this Court in McKenzie 

- 111. 608 P.2d at 447-448. 

In Jackson, it was stated that based on In Re Winship, 

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the critical 

inquiry on review of the sufficiency of evidence to support 

a criminal conviction must be not simply to determine whether 

the jury was properly instructed on reasonable doubt, but to 

determine whether record evidence could reasonably support a 

finding of guilt beyond a reasonable doubt. It was stated 

that the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential 

elements of the crime beyond reasonable doubt, repudiating 

the "no evidence" rule. Jackson, 443 U.S. at 318-320. 

The contention that in McKenzie 111, this Court applied 

an incorrect standard in determining the sufficiency of the 

evidence is perhaps a new issue, though implicit in our 

earlier statements respecting the overwhelming evidence of 

criminal intent is a finding of the sufficiency of the 

evidence. It is painful to repeat, that in the light most 

favorable to the State, the testimony of Dr. Pfaff was that 

Lana Harding was initially assaulted by means of attempted 

strangulation with a rope. She lived from 30 to 90 minutes 
thereafter, until she was struck on the head with a heavy 

object. The State contended the heavy object was the 

manifold that was found in the defendant's pickup. She died 

within 2 or 3 minutes of that blow, which opened her skull 

and exposed her brain tissue. In addition, there were five 

major and a number of minor wounds to the head which may 

have been inflicted by the same heavy instrument or a 

lighter one. Other lighter metal objects were found in 

petitioner's pickup. Dr. Pfaff testified that Lana Harding 

may or may not have been conscious after the initial attempted 

strangulation, but there are multiple wounds which give 

evidence that she was in fact conscious. She had received 

blows to the top of the head, over the front part of her 

face and on the right side. The backs of both of her hands 

were bruised which would indicate that she was attempting to 

ward off the blows of her assailant. These wounds, contusions 

and abrasions are evidence beyond a reasonable doubt to any 

rational trier of fact that she was indeed tortured. 

That the aggravated kidnapping resulted in her death is 

equally evident from the testimony. Dr. Pfaff testified 

that the infliction of the major wound to her head which 

caused her death would have resulted in extensive bleeding. 

He also stated that the absence of a large amount of blood 

in an area would indicate that the large wound was not 

inflicted in that area. No appreciable amount of blood was 

found in the teacherage in which she resided. However, a 

large amount of her blood was found at a place near the 

teacherage where petitioner had parked his pickup on the 

night of January 21, 1974. Her blood and brain tissue were 

found in the back of the pickup. A drag trail led from the 

teacherage to the place where the pickup had been parked. 
This is evidence beyond a reasonable doubt that Lana Harding, 

while still alive, was dragged from the teacherage to the 

pickup and killed in that area. Again, to any rational 

trier of fact, the evidence is overwhelming that her aggravated 

kidnapping resulted in her death. 

We find no support for petitioner's contention that 

this Court has applied an insufficient constitutional 

standard under Jackson v. Virginia, supra, or under any 

other case that we are aware of. 

VI. - Unanimous Verdict 

Under this contention, petitioner argues he was denied 

the right to a unanimous verdict of the jury as to his guilt 

or innocence as to each of the offenses charged; and, that 

the trial court, by instructions of law submitted to the 

jury listing elements of the offenses in the alternative, 

permitted petitioner's conviction without unanimous agreement 

that he had committed any one of the specific acts which 

constituted the crimes with which he was charged. He contends 

that the trial court refused an offered instruction which 

would have required a unanimous finding of specific acts 

constituting a specific offense before a verdict of guilty 

could be rendered and that the trial court failed to submit 

proper verdict forms which would have allowed the jury to 

make a specific finding of guilt or innocence as to each of 

the specific crimes charged. 

The District Court, in disposing of this contention, 

found no federal constitutional right to a unanimous verdict 

in criminal jury trials, and under the state constitution, 

Mont. Const., art. 11, 5 26, found that the unanimous jury 

verdict provision was complied with since the trial court 

instructed the jury that all 12 must agree to the "findings" 
and "decisions" which constituted their verdict. The District 

Court further determined that each theory presented to the jury 

was supported by substantial evidence, so that no possibility 

existed that the evidence was insufficient to support either 

verdict. Under these circumstances, the District Court 

concluded, the failure to require the jury to specify the 

theory on which it convicted did not deprive the petitioner 

of his right to a unanimous verdict. 

Here, the jury by its verdict, found the petitioner 

guilty of deliberate homicide, and found that homicide was 

by means of torture; in another verdict, it found petitioner 

guilty of aggravated kidnapping, and found that the aggravated 

kidnapping resulted in the death of the victim. The jury 

had been instructed that "all twelve jurors must agree to 

the decision, including the additional findings you are 

asked to make on the Guilty of Deliberate ~omicide verdict 

form and on the Guilty of Aggravated Kidnapping verdict 

form." When the verdicts were returned, the jury was polled 

as to each verdict and each of the said findings at the 

request of defendant's counsel and each of the verdicts and 

findings were affirmed. These verdicts and findings are not 

within the ambit of United States v. Gipson (5th Cir. 1977), 

553 F.2d 453, or State v. Green (19801, 94 Wash.2d 216, 616 

P.2d 628, for the reason that in this case, as distinguished 

from the cases on which petitioner relies, the evidence is 

sufficient here to support the jury verdict under any and 

all possibilities under the instructions. It is idle to 

speculate in this case, under the instructions of the court 

and the overwhelming evidence, that there is any possibility 

that the verdicts or the findings in this case were less 

than unanimous. 
VII. Equal Protection 

Petitioner claims denial of equal protection under the 

Fourteenth Amendment of the federal constitution, and like 

provisions of the state constitution, in that the trial 

court, the District Court on his application for postconviction relief, and this Court have denied him the 

benefit of established rules of state law afforded to other 

criminal defendants in our decisions on search and seizure. 

Petitioner also objects to our use of the harmless error 

rule on the Sandstrom instructions. In brief, he contends 

that he has been further discriminated against in that his 

is the only case of a sentence of death under a statute now 

repealed or superseded. 

Basically, petitioner is using the Fourteenth Amendment 

device to raise again issues which have otherwise been fully 

litigated in this cause and decided against him. We have 

upheld the validity of the arrest and search warrants, we 

have explained the application of the harmless error rule 

under the Sandstrom instructions and we have upheld the 

validity of the statutes which permitted the sentence 

imposed upon him. McKenzie - 111, 608 P.2d at 450. His 

contentions that his rights have been discriminated against, 

when compared to other defendants, or that he has been 

discriminatorily "classed" are simply without merit. 

VIII. Legality --- of the Death Sentence 

Petitioner contends he was unconstitutionally sentenced 

to death in that: (a) his death sentences were imposed in 

violation of the Eighth and Fourteenth Amendments of the 

federal constitution, in that there were no standards to 

channel and guide the sentencing discretion of the trial 

court or to provide safeguards against arbitrary and dis- ' 

criminatory impositions of the sentence of death; (b) his 
sentence was disproportionate to the sentence imposed in 

similar cases and he was given no opportunity to show the 

disproportionality of his death sentence; (c) his sentence 

of death for aggravated kidnapping which resulted in the 

death of the victim was constitutionally disproportionate 

because the jury was not required to find that he deliberately 

took the life of another; (d) expert testimony agreed that 

petitioner suffered from a "psychiatric disorder" which 

should have been a mitigating circumstance; (e) the sentencing 

court's findings of aggravating factors are unconstitutionally 

vague and no standards existed by statute or case law to 

guide the sentencing discretion; and, (f) this Court improperly 

upheld his sentence based on aggravating factors which were 

not listed by statute. Petitioner further contends that he 

should not be required to bear the burden of establishing 

mitigating circumstances; that he is entitled to a jury 

trial on the mitigating facts and the sentences; that his 

sentences were based on erroneous factual findings drawn 

from incompetent, unreliable evidence, with no opportunity 

to rebut; that the plea agreement was breached to his 

disadvantage; that he is the only person sentenced to death 

under the 1974 Montana capital punishment law; and, that the 

death penalty is discriminatorily applied in Montana against 

impoverished male defendants accused of killing caucasians, 

solely upon the grounds of race, poverty and sex. He asserts 

no legitimate state interest is served by the death sentence, 

that hanging is cruel and unusual punishment. 

In McKenzie 111, 608 P.2d at 448-451, we held that the 

statute under which petitioner was sentenced to death was 

constitutional when considered in the light of Furman v. 

Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, 
and Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 

L.Ed.2d 859. The constitutionality of the statute has been 

fully considered and decided by us. 

We turn now to consider the attacks made by McKenzie 

with respect to the sentence imposed upon him, the death 

penalty. 

(I) McKenzie states again that the death penalty laws 

applicable in his case are arbitrary and unconstitutional in 

that his sentence was imposed under a statute which "explicitly 

permitted discretionary death sentencing, without standards 

to channel and guide sentencing discretion or any other 

safeguard against arbitrary and discriminatory imposition of 

the sentence of death . . ." 

In McKenzie 111, this Court discussed these claims by 

the petitioner, and we found that the Montana statutory 

scheme in existence at the time of the crimes herein afforded 

defendant the procedural safeguards necessary to protect his 

substantive rights to be sentenced without arbitrariness or 

caprice, and in accordance with the United States Supreme 

Court cases of Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 

2950, 49 L.Ed.2d 929, Proffitt v. Florida (1976), 428 U.S. 

242, 96 S.Ct. 2960, 49 L.Ed.2d 913; and Gregg v. Georgia, 

supra. The issue therefore of the constitutionality of the 

sentencing statutory scheme has been fully litigated and 

decided. McKenzie 111, 608 P.2d at 448-451. 

(2) McKenzie claims there is no meaningful review 

provided in the Montana statutory scheme to guard against 

passion and prejudice, arbitrariness, or disproportionality 

in his sentencing. 

In McKenzie 111, we pointed out that prompt judicial 

review of his death sentence was provided both by appeal to 
this Court and by review in the sentence review division of 

this Court. This issue has been fully considered, litigated 

and decided. McKenzie - 111, 608 P.2d at 450. 

(3) McKenzie claims that in his review before the 

Sentence Zeview Division, he was given no opportunity to 

offer evidence and the Sentence Review had no standards to 

make such a review. 

It is clear from the record that when he was before the 

sentence review division, McKenzie presented no evidence, 

nor offered to present any evidence with respect to the 

proportionality or arbitrariness of his sentence. Instead, 

he attacked the legality, rather than the appropriateness of 

his sentence. The function of the Sentence Seview Division 

was to consider the appropriateness of his sentence with 

respect to him as an individual offender, and as to the 

particular offense involved. McKenzie 111, 608 P.2d at 450. 

Under section 46-18-904, MCA, the sentence review 

division is given full authority to review the judgment so 

far as it relates to the sentence imposed, to either increase 

or decrease the penalty. In reviewing the judgment, the 

division may consider other records, documents or exhibits 

relevant to such review proceedings. When McKenzie appeared 

before the Sentence Review Livision, he requested only that 

the division obtain from all 56 District Court clerks the 

records of sentencing in every deliberate homicide and 

aggravated kidnapping case since 1972. The Sentence ~eview 

Division denied this request. The ~istrict Court, in considering 

the application for post-conviction review, held that a 

proportionality review is sufficient if the Sentence Review 

Division considers the records of appealed cases. The 

review division did so consider and we agree with the District 

Court's conclusion. 
(4) McKenzie attacks his sentence on the ground that 

it is disproportionate to the crimes for which he was 

convicted and upon the further ground that the jury did not 

find that he had deliberately caused the death of another. 

McKenzie contends that the death penalty is disproportionate to the offense of aggravated kidnapping. In State 

v. Coleman (1979), Mont. - , 605 P.2d 1000, 1017, 36 

St-Rep. 1134, 1150, cert.denied, 446 U.S. 970, 100 S.Ct. 

2952, 64 L.Ed.2d 831, we pointed out that the United States 

Supreme Court in Gregg, made it clear that "when a life has 

been taken by an offender [it cannot be said] the punishment 

[of death] is invariably disproportionate to the crime." 

428 U.S. at 187, 96 S.Ct. at 2932, 49 L.Ed.2d at 882. We 

distinguished Coker v. Georgia (1977), 433 U.S. 584, 97 

S.Ct. 2861, 53 L.Ed.2d 982, as being relevant only to crimes 

for which the penalty has been imposed which did not result 

in the loss of a life. In McKenzie 111, 608 P.2d at 459, as 

the District Court noted in considering petitioner's application 

for post-conviction relief, we found the evidence on the 

issue of intent to be overwhelming, uncontradicted, and 

permitting of but one rational conclusion-that McKenzie 

intended to kidnap and kill the victim. 

(5) McKenzie claims that his sentence of death is 

disproportionate to sentences imposed in similar cases. 

In Coleman, 605 P.2d at 1021, we noted that the crime 

of aggravated kidnapping has been a part of our statutory 

law only since 1973 and that we were necessarily confined to 

a review of cases since that time, which we found sufficient, 

though not large in number. This case was used in Coleman 

as a comparative case and we look to Coleman in this case as 

a comparative case. We also find State v. Fitzpatrick 
(1980) - Mont. , 606 P.2d 1343, 37 St.Rep. 194, 

cert.denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118, to 

be suitable for comparison. Again, in Fitzpatrick, 606 P.2d 

at 1361, this case was used as a comparative case in discussing the Fitzpatrick sentence of death. Our discussions 

of the similarity of these cases and the proportionality of 

the death sentence imposed as to Coleman and Fitzpatrick, as 

well as to McKenzie, and our discussion of State v. Buckley 

(1976), 171 Mont. 238, 557 P.2d 283, appearing in Fitzpatrick, 

606 P.2d at 1362, indicate that McKenzie is under a sentence 

that is not disproportionate to sentences that have been 

imposed in similar cases. 

(6) McKenzie attacks his death sentence on the ground 

that he was suffering from a mental disease or defect 

denominated a "psychiatric disorder" which he claims to be a 

mitigating circumstance. 

The District Court in considering the post-conviction 

application, stated: "The presence of a personality disorder 

does not automatically immunize a defendant from the death 

penalty. " 

The overweighing factor against the petitioner on this 

contention is that the jury did not find that he had suffered 

from a mental disease which prevented him from forming the 

specific intent necessary for the charged offenses. Even 

the District Court's sentencing order in the criminal 

proceedings shows that the factor was considered and found 

to be insufficient. 

(7) McKenzie attacks his death sentence upon the 

ground that it is based on findings of aggravating factors 

which are unconstitutionally vague and open-ended with no 

channel or guide to the sentencing discretion. 
This is simply another way of attacking the constitutionality of the Montana sentencing statutory scheme which 

as we have indicated above is constitutionality sound. 

The crime of "homicide by torture" as defined by the 

court's instructions and approved by us in McKenzie 111, 608 

P.2d at 445, is sufficiently definite to prevent an overbroad 

application of the factors. Substantial evidence showed 

that the victim died as a result of an aggravated kidnapping. 

McKenzie 111, 608 P.2d at 447-48. There is no merit in this 

contention. 

(8) McKenzie attacks the sentence upon the ground that 

the sentencing judge relied on the aggravating factors other 

than those found in our statutes. 

The District Court, in considering the post-conviction 

application, stated that the jury had found two specific 

statutory aggravating factors and saw no reason why the 

sentencing court is required not to consider a wide range of 

factors in determining whether the aggravating circumstances 

are outweighed by mitigating factors. For this reason, the 

District Court determined, in denying McKenziels application 

for post-conviction relief, that it was not improper for the 

District Court to consider: (1) the petitioner's failure to 

present evidence to "mitigate his conduct," (2) his conviction 

for rape, (3) his purported "dangerousness," (4) his antisocial behavior, (5) the small number of years he would be 

required to serve if a 100 year sentence were given, (6) 

whether rehabilitation of petitioner was not possible; and, 

(7) whether he must be executed for the protection of society. 

We agree with the District Court. All of these factors 

considered by the sentencing court bear on the aggravating 

factors found by the jury and properly relate to the propriety 

of the sentence of death. 
(9) McKenzie claims that his sentence of death is 

based on findings from incompetent evidence, some of which 

was not revealed to him before trial, and against which he 

had no opportunity for rebuttal. 

In McKenzie 111, 608 P.2d at 441, 442, we rejected 

these contentions as to the validity of his conviction. We 

similarly reject these contentions with respect to the 

validity of his sentence. 

(10) McKenzie attacks his sentence upon the ground 

that the District Court ignored or violated a plea agreement 

for a lesser sentence. 

In McKenzie 111, 608 P.2d at 439, we found that no plea 

bargain or agreement existed. This issue has been fully 

litigated and decided and is not a bar to the sentence 

imposed upon McKenzie. 

(11) McKenzie attacks his death sentence because of 

his claim that he will be the only person executed under the 

1974 capital punishment law, and that there is no rational 

basis to distinguish his case from others. 

Again we have repeatedly stated that the statutory 

scheme for capital punishment as applied to McKenzie was 

valid, and that his sentence is not disproportionate as to 

the facts, the crime or his character, and we therefore 

reject this contention. 

(12) McKenzie's contention that the Montana legislature 

has subsequently amended the capital punishment provision so 

as to provide consideration of both aggravating and mitigating 

circumstances, and that no such provisions existed for his 

benefit, is again an attack upon the constitutionality of 

the statutory sentencing scheme in effect with respect to 

him which we have previously rejected. 
(13) McKenzie attacks the death sentence upon the 

ground that it is being imposed both in Montana and the 

United States against impoverished male defendants accused 

of killing caucasians upon the grounds of race, poverty and 

sex, in a discriminatory pattern and practice. 

In Fitzpatrick 111, 38 St.Rep. 1448, 1454, we discussed 

this issue. We find no basis for this contention and 

petitioner has alleged none. Nor has petitioner offered any 

proof of such contention. 

(14) McKenzie further attacks his sentence upon the 

ground that no valid state purpose is served in imposing the 

penalty upon him. 

In Gregg, 428 U.S. at 183, two justifications for 

capital punishment were noted: retribution and deterrence. 

The applicability of these as justifications present complex 

issues, properly left for legislative determination, and it 

is with the legislature that this Court will leave that 

determination. There is no basis on that ground for postconviction relief. 

(15) McKenzie attacks the imposition of a death 

penalty by hanging as cruel and unusual punishment. 

We discussed this issue in Coleman - 11, 605 P.2d at 

1058-59. The issue has been fully decided by this Court. 

We come finally to conclude in this case that petitioner's 

application for post-conviction relief in the District Court 

was properly denied, and that on appeal to this Court, the 

decision of the District Court is hereby affirmed. We 

remand this cause to the District Court in which the sentence 

upon the defendant was imposed, for such further proceedings 

as are necessary to execute the sentence imposed upon the 

petitioner. 

-29- 
Justice 

We Concur: 

Chief Justice -7 

A 

~on.\-Plark Sullivan, District 

Judge, Sitting for Mr. Justice 

John C. Harrison 

Mr. Justice Daniel J. Shea and Mr. Justice Frank B. 

Morrison, Jr., will file written dissents at a later 

time. 
Yr. Justice Frank B. Morrison, Jr., 

dissent. 
Mr. Justice B. Morrison, Jr., dissenting: 

I respectfully dissent from the majority opinion. 

Numerous issues have been raised in this post conviction 

review proceeding. One issue is dispositive. 

The application for a search warrant did not satisfy 

constitutional requirements. Therefore, the fruits of the 

search should have been suppressed. 

The Montana Constitution, Article 11, Section 11, 

governs the issuance of a search warrant. That section 

provides: 

"The people shall be secure in their persons, 

papers, homes and effects from unreasonable 

searches and seizures. No warrant to search 

any place, or seize any person or thing shall 

issue without describing the place to be 

searched or the person or thing to be seized, 

or without probable cause, supported by oath 

or af f irmation reduced - to writing. " (Emphasis 

supplied.) 

The constitution specifically prohibits the consideration 

of oral testimony in establishing probable cause necessary 

for the issuance of a search warrant. The probable cause 

must be established by a statement under oath and in writing. 

The constitutional mandate is clear. There are no exceptions. 

The magistrate who issued the search warrant in this 

case stated that he found probable cause based upon the 

county attorney's affidavit and the testimony of a deputy 

sheriff. The affidavit of the county attorney is questionable 

because the county attorney merely acknowledged that he 

signed the instrument. The acknowledgement fails to state 

that any of the facts stated in the instrument are true. 

Nevertheless, this discussion will proceed assuming that the 

county attorney did present an affidavit to the issuing 

magistrate. 
The affidavit of the county attorney did not establish 

probable cause and it was necessary for the magistrate to 

consider the deputy's testimony. The magistrate conceded 

that the deputy's testimony was the basis for the search 

warrant. The Supreme Court of Montana concurred. 

I here offer an excerpt from the majority opinion in 

State v. McKenzie (1978), 177 Mont. 280, p. 2d , for 

the purpose of showing factual considerations relevant to 

the issuance of a search warrant: 

"A summary of the testimony shows Justice 

of the Peace Wolf testified he customarily 

swears all witnesses -- though he did not 

recall swearing the county attorney, he 

considered him sworn. Deputy Hoover testified he came into town about 4:30 P.M. on 

January 22, 1974, with directions to go to 

the county attorney's office; that he helped 

the county prepare the affidavit and he 

then went before Justice of the Peace Wolf 

and gave sworn testimony in support of the 

issuance of the warrants. County Attorney 

Nelson testified he had been at the scene 

with the sheriff and his deputies during 

the afternoon and just prior to his coming 

to town to get warrants issued. At the 

hearing, he said in answer to a question 

as to what knowledge he had of the facts: 

'Answer. Well, without looking at the 

affidavit now -- I think the first paragraph or two is my statement as to what 

I determined, that she was missing and may 

have been the victim of foul play but of 

what nature we didn' t know at the particular time, and that she resided at the 

teacherage. ' I' 

The basis for magistrate Wolf issuing the search warrant 

is found in the testimony he gave by deposition as follows: 

"Q. Based upon the testimony of Mr. Hoover 

and this affidavit, you issued a warrant of 

arrest; A. This is correct. 

"Q. And you issued a search warrant? A. That 

is correct. 

"Q. Was there any other testimony or information brought to your attention that was not 

included in the sworn statement of Mr. Jerry 

Hoover, the Deputy Sheriff, or in this affidavit? Was there any other evidence brought 

to your attention at that time? A. Not as far 

as I can remember." 
The Supreme Court of Montana in State v. McKenzie, 

supra, found that the search warrant was properly issued and 

in support of this finding said: 

"In addition, the county attorney examined 

Deputy Hoover before the justice of the peace 

as to facts he learned during the investigation. Here, unlike Gray, there was, in 

effect, sworn testimony by the county attorney 

and deputy sheriff in addition to the affidavit, 

-- and the combination thereof established probable 

cause." (Emphasis supplied.) 

Both the magistrate who issued the search warrant and 

the members of the Supreme Court majority who affirmed the 

issuance of the warrant did so based upon oral testimony. 

This is specifically prohibited by the constitution. The 

only evidence which can be considered to establish probable 

cause is that evidence which is under oath and "reduced to 

writing. " 

There are numerous issues in this case. One can debate 

the merits of those issues endlessly. It is questionable 

that there was an affidavit submitted by the county attorney. 

It is doubtful that a combination of affidavit and oral 

testimony established probable cause. It is doubtful that 

the items seized during the search were adequately described 

in the search warrant. At least these issues are justiciable 

controversies about which reasonable people can disagree. I 

would observe that the state must be liberally indulged if a 

reviewing court is to find there was probable cause and that 

the items seized were sufficiently described in the warrant. 

The affirmance of these two aspects of the warrant stretches 

the law but perhaps not to the breaking point. 

A finding of probable cause based upon oral testimony 

cannot be sustained without violating the constitution. 

This case presents a very clear and trying test for the 

judicial conscience. The illegally seized evidence shows 
that the defendant committed this act. The act, as illustrated 

by the photographs in evidence, is so debased that any 

degree of judicial objectivity is difficult to maintain. 

I approach this decision realizing that the suppression 

of the illegally seized evidence may well result in freeing 

a very dangerous individual. I must confess that the human 

temptation is to adopt the course taken by the majority. 

Post McKenzie I and McKenzie 11, lawyers, in analyzing the 

two opinions, have determined that the cases enunciate a new 

legal principle known as the "clearly guilty rule." In 

other words, the Court was countenancing a constitutional 

violation because the defendant was "clearly guilty." 

When I took this oath of office I swore to uphold the 

constitution. To sustain a finding of probable cause based 

upon evidence which violates a clear constitutional mandate 

would violate my oath of office and would place me, as a 

Justice of the Montana Supreme Court, above the law. 

What I have herein said is not meant as personal criticism 

of my brethren. I know them to be honorable men -- deeply 

committed to principles of justice. However, in my judgment, 

in this case, they failed to follow the law. 

With deep regret, knowing the defendant likely committed 

this most heinous act and knowing that this decision, if upheld 

by the federal courts, cou1.d result in the defendant going 

free, I nevertheless must follow the clear constitutional 

directive. Therefore, I would reverse and remand with 

directions to the trial court to proceed in conformity with 

this dissent. 
STATE V. McKENZIE 

No. 81-110 

DISSENT OF MR. JUSTICE DANIEL J. SHEA 

Dated: January 26, 1982 

$AN 2 6 1982 

0 if @ o/8Ei.,f%~lit 81 

SUPFSEi;'lE COURT 4, 

$3F_ jX,".OKIANA 

fa*. 
Mr. Justice Daniel J. Shea dissenting: 

I dissent. However heinous, however barbarous the actions 

of the defendant in this case, this Court is still obligated 

to give full and fair review to all issues raised on appeal. 

We have failed miserably in that obligation. 

I. INTRODUCTION 

Once again I find myself dissenting to a McKenzie decision. 

Since the present appeal was filed, I have carefully studied 

other issues that either I didn't know had been raised before, 

or that I didn't have time to closely study due to arbitrary 

time limits for issuing opinions. 

I was not a member of this Court when McKenzie - I was 

decided. In McKenzie - I1 my dissent was devoted to the search 

and seizure issues and the death penalty issues that had been 

raised. In McKenzie 111, although I touched on other issues, 

I concentrated primarily on what I considered the failure of 

this Court to properly apply the harmless error rule to eight 

unconstitutional Sandstrom-type jury instructions--instructions 

which had been expressly declared unconstitutional by the 

United States Supreme Court. I still admit that I have not 

thoroughly studied all the issues raised in the first and 

subsequent appeals, but I have concentrated on those issues 

in which I believe serious, reversible error to have occurred. 

I have also focused on those issues the majority has either 

omitted entirely from discussion or dealt with in a most 

perfunctory and unsatisfactory manner, in essence misstating 

the issues. I have also devoted a good part of this dissent 

to the death penalty issues raised by McKenzie in his petition 

for post-conviction relief and which had not been raised in 

previous appeals to this Court. Most of those issues center 

on the death penalty question. 

In addition to this Introduction, I divide this dissent 

into 9 parts. In Part 11, I disapprove of this Court's 
adoption in midstream of an entirely different rule for 

consideration of res judicata issues than was adopted and 

applied in Coleman 111, infra, and Fitzpatrick 111, infra. 

In Part 111, I develop the evidentiary record for the plea 

bargain issue, and this record convinces me beyond any doubt 

that an enforceable plea bargain existed, and that the State 

--- and the trial court violated that agreement. In Part IV, 

I discuss the charges filed and the instructions given on 

homicide. I am convinced that McKenzie was convicted and 

sentenced to death for the commission of an offense not 

defined by Montana statutes--deliberate homicide by means of 

torture. There is a high probability that the jury in fact 

convicted McKenzie of this nonexistent offense. In Part V, 

I discuss the statutory language "deliberate homicide by means 

of torture." I conclude that this language is unconstitutionally 

vague, especially since it involves an aggravating circumstance 

which can trigger imposition of the death penalty. I further 

conclude, in any event, that strict construction of this 

phrase requires the conclusion that the jury's finding that 

the deliberate homicide was committed - by means - of torture was 

not proved, and therefore, this finding cannot be the basis 

for imposing the death penalty. 

In Part VI, I discuss three areas raised by McKenzie, 

in which he argues that this Court has denied him equal 

protection of the laws: the search and seizure, the lesserincluded offense instructions, and the application of the 

overwhelming evidence standard in declaring the eight unconstitutional Sandstrom-type instructions to be harmless error. 

In Part VII, I focus on several issues at trial which 

convince me that McKenzie was denied a fair trial. The 

cumulative effect of these errors requires that a new trial 

be ordered. 
In Part VIII, I focus on the jury instructions and 

the multiple alternative charges--the result being that 

McKenzie may well have been denied his constitutional right 

to a unanimous jury verdict. The reasonable possibility 

that he was denied a unanimous jury verdict in this, a death 

penalty case, requires that the convictions be reversed. 

In Part IX, I focus on the death penalty issues raised 

by McKenzie, several of which were raised in previous appeals, 

but most of which were raised for the first time in his 

petition for post-conviction relief. The way this Court has 

disposed of these death penalty issues convinces me that a 

death penalty scheme cannot be fairly and rationally administered 

in this state. All that is needed for a death penalty to be 

imposed in this state is the right combination of prosecutor 

and trial judge. And once the decision is made to impose the 

death penalty, this Court will close its eyes to the issues 

raised on appeal. The United States Supreme Court has imposed 

a mandatory duty on the highest appellate court of each state 

to carefully review the trial record as well as the basis for 

the imposition of the death penalty. Yet, we have failed 

miserably in undertaking this obligation. 

In Part X, I simply conclude by summarizing the issues 

this Court either ignored or stated to be different than what 

McKenzie actually raised in his appeal. 

This is the longest dissent I have ever written, and 

doubtless it could be both shorter and better written. I 

could not begin to estimate the hours that I have devoted 

to studying this case and writing this dissent, but I nonetheless apologize for taking all the space that necessarily 

must be devoted to this dissent. This dissent, in which I 

have distilled the trial record on many important issues, will 

demonstrate the majority opinion to be manifestly in error 
where it is stated that in all the annals of criminal law 

history in this State, no defendant has ever been given more 

"tender legal care." The care given on appeal cannot be 

measured by the number of appeals taken nor by the number of 

issues disposed of. Rather, the care must be measured by 

whether we, as the Court, have fairly discussed each issue 

raised, and whether we have given McKenzie a fair and evenhanded application of the law that must be given to all 

defendants in the courts of this State. Measured by that 

standard, our review of these four McKenzie appeals has been 

an abysmal failure. It is the most telling proof that a 

death penalty defendant cannot receive thorough and even-handed 

consideration of his case by the judiciary of this state. 
11. DENIAL OF EQUAL PROTECTION: INCONSISTENT APPLICATION 

OF RES JUDICATA PRINCIPLES AS THEY RELATE TO POST-CONVICTION 

RELIEF 

In his appeal, McKenzie raised three equal protection 

arguments which have been ignored in the majority opinion. 

He claims that in ruling in three areas of the law--search 

and seizure, lesser included offense instructions, and the 

application of a harmless error rule to the Sandstrom-type 

instructions--we have created special rules for McKenzie, 

denying him equal protection of the laws. Now, in addition 

to these issues, the majority here has added yet another denial 

of equal protection of the laws by adopting American Bar 

Association standards for determining whether issues raised 

in a post-conviction relief petition are res judicata. The 

fact is that just a short time ago this Court adopted standards 

which are designed to more effectively meet the issues on the 

merits. 

Just recently this Court adopted the framework of 

Sanders v. United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 

10 L.Ed.2d 148, to determine whether an issue in a postconviction relief petition is res judicata. See Coleman v. 

State (1981), - Mont. - , 633 P.2d at 629-31, 38 St.Rep. 

at 1357-59; and Pitzpatrick v. State (1981), - Mont . - I 

- P. 2d - , 38 St.Rep. at 1450-52. Because we adopted the 

three part analysis of Sanders to apply to Coleman and Fitzpatrick, 

it seemed logical to me that we would also apply it to McKenzie. 

Instead, the majority adopted the more restrictive rule 

promulgated by the American Bar Association, and. used it as 

the analytical framework within which to assess whether most 

of the issues are res judicata. The majority has denied review 

of many of McKenzie's claims on that ground that they have 

already been "fully and finally decided." (See the American 
Bar Association rule quoted by the majority, 38 St.Rep. at 

1749.) Strangely enough, the majority opinion does not 

ever state why the recently adopted rules of Sanders were 

forgotten in this case. 

Although the majority opinion would have one believe 

that the American Bar Association standards for res judicata 

implicitly always have been the rule in this state, the fact 

is that in Coleman 111 and Fitzpatrick 111 we adopted the 

less restrictive rules set forth in Sanders. Under the ABA 

standards for res judicata, the final inquiry is whether the 

issue has been fully and finally decided. On the other hand, 

under the Sanders rules, the final inquiry is whether the ends 

of justice would be served by again considering the issue on 

its merits. This Sanders rule permits the appellate court to 

again consider the issue to see not only if it was decided, 

but to see if it was correctly decided. Obviously, if it was 

not correctly decided the ends of justice would be served by 

correcting the mistake and deciding the issue properly. But 

that is precisely what the majority did not want to do in this 

case. 

If, as the majority states, the ABA standards impliedly 

always have been the rule in this state, why did we adopt and 

apply the Sanders rules in Coleman I11 and Fitzpatrick III? 

And why, if the rules always have been the same, didn't the 

majority simply apply the Sanders analysis instead of the 

ABA analysis. The answer is that a Sanders analysis would 

require us to change our decisions on several of the issues, 

and the majority has no intention of doing that. 

The majority has interpreted the ABA standards to mean 

that the end of review comes by a bland statement that the 

issue has been "fully and finally decided." The effect, as 
applied here, is that even if a previously decided issue 

was decided incorrectly, the issue is, insofar as the majority 

is concerned, res judicata. 

Of course, the merits of the Sanders rules over the ABA 

rules can be debated. But we have no right to change the 

rules in midstream in order to provide an excuse for again 

not reaching the issues on the merits. It is simply another 

demonstration that this Court cannot be consistent when 

applying the laws to McKenzie. The result is that we again 

have denied McKenzie equal protection of the laws. See the 

dissenting opinion of Justices Marshall and Brennan in 

McKenzie v. Montana (1980), - U.S. - , 101 S.Ct. 626, 627, 

66 L.Ed.2d 507, 508, where they strongly chastised this Court 

for its uneven application of the law to McKenzie. 

I have always felt that death penalty cases require the 

closest scrutiny on appeal. I think it especially sad that 

in selectively applying the more restrictive ABA standards 

for considering res judicata claims in McKenzie's final appeal 

before this Court, we have excused ourselves from determining 

whether we have correctly applied the law to his case. We 

have simply buried the constitutions a little deeper than 

they were in the former McKenzie appeals. 
111. PLEA BARGAIN: THE STATE AND THE TRIAL COURT BREACHED 

AN ENFORCEABLE PLEA BARGAIN 

The unrefuted record demonstrates that an enforceable 

plea bargain existed and that the State, with the aid of 

the trial court, breached that agreement. Proper resolution 

of this issue requires that the death sentences be vacated 

and that on remand the trial court be instructed to enforce 

the plea bargain. 

I must admit that I am more than a little shocked by 

how the majority has changed the basis of its decision in 

McKenzie - I, 557 P.2d at 1038, to that in McKenzie 111, 608 

P.2d at 438-39, even though both decisions are based on the 

same record. 

In McKenzie - I, this Court clearly recognized that a 

plea bargain existed, and, in fact, stated that the State had 

acknowledged it. 557 P.2d at 1038. This Court, however, 

declared that the plea bargain was unenforceable either 

because the agreement was subject to a condition that the 

sheriff and the victim's parents consent to the plea bargain 

or because the prosecutor called the deal off before McKenzie 

had entered his plea. 

However, in McKenzie 111, 608 P.2d at 439, in an obvious 

acknowledgment that this holding in McKenzie - I could not 

withstand careful scrutiny, this Court apparently changed its 

mind, stating that a plea bargain never did exist because 

McKenzie was aware of an express condition that before he 

could enter a guilty plea, the prosecutor first had to obtain 

the consent of the victim's parents and the local sheriff. 

And then the majority adds that the trial judge resolved the 

factual dispute of whether this express condition existed by 

declaring that it did not exist. Because there was never 

a hearing before the trial court on this issue, I fail to 
See how the trial court could resolve it. Furthermore, the 

unrefuted record supports McKenzie's contention -- 

that an 

enforceable plea bargain existed --- and must be specifically 

en£ orced. 

The majority opinion leaves the impression that all 

the facts relating to the State's position were set forth 

in the record, that evidence was taken, and that the trial 

court resolved the factual issue in favor of the State. 

Nothing could be further from the truth. The State's position 

as stated in the majority opinion was taken entirely from 

the State's briefs, and possibly bolstered by statements made 

by counsel for the State during argument of McKenzie - I before 

this Court. 

Because the majority opinion has not set forth facts 

the record, and because it is only from that record that we 

can determine what happened, it is necessary to explain what 

the record does state in regard to the plea bargain negotiations 

and the ultimate agreement reached by the parties which 

although approved by the trial court, was later repudiated 

when the prosecutor announced that the "deal - was - -- off." 557 

A. THE FACTS IN THE RECORD SUPPORT ONLY THE CONCLUSION 

THAT THERE WAS AN ENFORCEABLE PLEA BARGAIN 

On Sunday, December 22, 1974, counsel for both sides 

met in Conrad, in the law office of defense counsel Charles 

Jacobson. At this time, the trial judge gave counsel for 

both sides the preliminary instructions. All attorneys saw 

problems with those instructions--including the fact that many 

of them were unconstitutional. The attorneys met for an extended 

period of time and arrived at a plea bargain agreement to be 

presented the next day to the trial judge for his approval. 
The plea bargain was that McKenzie would withdraw his 

pleas of not guilty and plead guilty to the offense of 

deliberate homicide committed in the course of committing 

felony aggravated assault with a heavy weapon, in exchange 

for a 50-year prison sentence. McKenzie would also plead 

guilty to another charge of felony aggravated assault 

committed with a weapon, and for this crime was to receive 

20 years in prison. The sentences were to run concurrently. 

All counsel met in Great Falls the next day, December 

23, 1974, in the chambers of the trial judge. This meeting 

lasted for more than three hours. The judge expressed a 

certain displeasure with the agreement, especially with regard 

to the length of the prison sentences, but nonetheless he 

went along with the plea bargain. The judge and counsel all 

agreed that on December 30, 1974, McKenzie would withdraw his 

not guilty pleas and plead guilty to the two charges. 

After the trial judge approved the agreement, defense 

counsel and the prosecutors proceeded to the O'Haire Manor 

in Great Falls. There, acting in reliance on the approved 

agreement, defense counsel divulged their theories of defense 

to the State, and further revealed all they knew concerning 

the weaknesses in the State's case, so that the prosecutors 

would be better able to explain to the press, the public, 

the victim's parents, and the local sheriff why the plea 

bargain agreement had been made. 

But, suddenly, the "deal was off." On December 28, 1974, 

two days before McKenzie was to appear in court and change 

his pleas, the prosecutor contacted defense counsel and told 

them that he could not perform the plea bargain agreement. He 

told defense counsel that the victim's father had threatened 
bodily harm to McKenzie, defense counsel, and the prosecutors 

if the plea bargain was carried out. 

McKenzie, defense counsel, and the prosecutors all met 

as agreed with the trial judge on December 30, 1974. Defense 

counsel movedthe trial court to accept withdrawal of the 

not guilty pleas and substitute guilty pleas to the two agreedupon charges and moved that McKenzie receive the sentences 

agreed to by the State and the trial court. The prosecutor 

objected, but at no time stated that the parties had not made 

a plea bargain agreement. Nor did he ever state that the 

agreement was subject to the consent of the victim's parents 

or the sheriff . 

Defense counsel filed an extensive affidavit setting 

forth the terms of the plea bargain, and made this statement 

for the record, the facts of which were never refuted or 

denied by the State: 

"They [the prosecutors] had originally advised 

us that it was their desire to go to the parents 

of this deceased girl, and to go to the sheriff, 

and try to make their peace with them, with sort 

of the understanding that if they could not, why 

then all of this matter would come to naught. 

"Of course, this left us in a position of having 

someone make a decision, prior, or after, we had 

presented this matter in court. As long as it 

was prior to presenting this matter in court, why 

we felt that there was no real damage done; however, 

atthe request of the prosecution, we came down here, 

with them, with the understanding, that we would 

present this matter to the court, and see whether 

or not we couldn't resolve the entire situation. 

- Wow, -- as the court ---- well knows what the decision was, 

-- and the court decided -- to go along -- with our bargain, 

-- and the bargain --- had been fully acceptable -- by the 

prosecution." (Emphasis added.) 
The defense's affidavit which was filed on December 

30, 1974, and served on the prosecutors, more explicitly 

detailed the circumstances leading to the plea bargain and 

its approval: 

"It was the Special Prosecutor's avowed initial 

intention to present this [the plea bargain] to 

the said Sheriff and family of the deceased 

before making our mutual presentation to the 

Court; it was the apparent understanding of all 

concerned, and especially this affiant, that if the 

Prosecution could not secure the approval of said 

Sheriff and the family of the deceased, that there 

would probably not be any necessity of presenting 

the situation to the Court; 

"The Prosecution then deemed -- it more expedient to 

approach the Court with this situation prior to 

any other consultation; that it was never the 

intention of your affiant, or his co-counsel, to 

ever allow the Sheriff of Pondera County or the 

family of the deceased, to have the power to 

'veto' over the negotiations then taking place, 

but that since contact with them would be made 

prior to our mutual approach to the Court, no 

harm to~efendant would be done; however, your 

affianvs- attitude as it related to their being 

consulted after the mutual contact with the 

Court was opposite . . . if the Court refused to 

accept the plea bargain, the matter would be halted, 

or if the court accepted the offer, the Prosecution's 

contact with the Sheriff and family of the deceased 

would be for the purpose of pro forma consultation 

for the purpose of courtesy and to attempt to reduce 

the possibility of these parties causing adverse 

public opinion within Pondera County against either 

the County Attorney or the Special Prosecutor. 

"That your affiant and co-counsel left this meeting 

[with the trial judge] with the complete and 

unequivocal understanding that a final and complete 

bargain had been struck by all parties including 

the Court; that counsel for the Prosecution were 

then going to apprise the family of the deceased 

and the Sheriff of Pondera County of this agreed 

upon situation;" (Emphasis in original.) 

The affidavit further explained why the prosecutors 

decided to call off the plea bargain--the prosecutors had 

told defense counsel that they and others had heen threatened 

with physical harm if they followed through with the agreement, 

and implied that they had been in contact with other district 

court judges who had advised them not to follow through with 
the agreement. The State at no time filed a counteraffidavit 

or made any statement into the record refuting or denying 

the facts set forth in defense counsel's affidavit. The 

State's only response at this time was that it did not have 

to follow through with the plea bargain, in effect, that it 

had the unilateral right to abrogate that agreement. 

The trial court at no time entered findings or conclusions 

on this issue, even though it had previously approved the 

plea bargain after more than a three hour session in chambers 

on December 23, 1974. The trial judge's only response to 

McKenzie's contentions was: "Well, of course, this is plea 

bargaining, and if they [the State] don't want to go through 

with plea bargaining, I don't suppose they have to." Supplemental 

Transcript of December 30, 1974 Hearing, p. 5. See Appendix 

to Appellant's Brief, Vol. I, Specification of Error No. 2. 

After stating that the prosecutor was under no duty to 

proceed with the plea bargain, the trial judge confirmed the 

existence of the plea bargain when he specifically asked the 

prosecutor: "Do you want to proceed ---- the way that you agreed 

with counsel last Monday, the 23rd of December . . ." (Emphasis 

added.) Supplemental Transcript of December 30, 1974 Hearing, 

p. 5. See Appendix to Appellant's Brief, Vol. I, Specification 

of Error No. 2. 

The prosecutor responded that he did not, and the court, 

without any further inquiry announced that the case would go 

to trial. Supp. Transcript of December 30, 1974 Hearing, p. 6. 

See Appendix to App. Brief, Vol. I, Specification of Error No. 2. 

Therefore, the majority's conclusion that a plea bargain 

did not exist flies directly in the face of the unrefuted record. 

On January 3, 1975, five days before the trial, McKenzie 

again filed a motion to compel the State to honor the plea 

bargain. As of this date, however, there is absolutely no 

evidence in the record that the State even contended that it 
had given veto power of the plea bargain to the victim's 

parents or the sheriff. Yet, the trial court summarily 

denied the motion, stating in a written order: 

"On January 3, 1975 defendant, through his counsel, 

made, filed, served and presented his 'Motion to 

Enforce Agreement of December 23, 1975' to the 

Court; 

"The Court having fully considered the matter 

upon the merits and deeming there to be no good 

reason for delay in the issuance of its decision 

upon the Motion, finds said motion to be without 

merit and denies the request contained in the 

prayer; 

"Therefore, it is hereby ORDERED that said Motion 

is denied. 

"DATED this 3rd day of January, 1975." Order Denying 

Motion to Enforce Agreement of December 23, 1974. See 

Appendix to Appellant's Brief, Vol. I, Specification 

of Error No. 2. 

The order, although claiming to deny the motion on 

the merits, fails to state what those merits were. Did the 

trial court decide that an enforceable plea bargain did not 

exist because it was expressly conditioned on the veto power 

of the victim's parents or the local sheriff, or did it 

decide that although a plea bargain existed, it was nonetheless 

unenforceable because there are no Montana laws recognizing 

a plea bargain? 

Before the start of trial, defense counsel moved 

unsuccessfully to disqualify the trial judge. It was urged, 

among other grounds, that the trial judge had already 

demonstrated bias and prejudice toward McKenzie by the 

unconstitutional instructions he had prepared, that the 

instructions created the nonexistent offenses of deliberate 

homicide by means of torture and deliberate homicide by 

lying in wait or ambush. 

On January 8, 1974, the morning the trial began, the 

prosecutors asked the trial judge for permission to add 

58 more witnesses to the Information. McKenzie opposed 

this motion, arguing that it was prejudicial to him because, 
among other reasons, the defense, in relying on the plea 

bargain agreement, had revealed its defense and the State's 

weaknesses. True to form, the trial judge permitted the 

additional 58 witnesses. Order Granting Motion for Endorsement of Names of Witnesses on Amended Information. See 

Appendix to Appellant's Brief, Vol. I, Specification of Error 

No. 7. 

After McKenzie was convicted, but before his sentencing, 

defense counsel filed motions for a hearing on mitigation, 

and for a new trial. The motion for mitigation again requested 

the benefit of the abrogated plea bargain by asking the court 

in effect, to enforce the plea bargain by not sentencing McKenzie 

to any more than 50 years in prison. That motion was summarily 

denied. In the motion for a new trial, McKenzie alleged 

prejudice by the addition of 58 additional witnesses on the 

first day of trial, and that this prejudice resulted from the 

prosecutor's abrogation of the plea bargain. This motion was 

also summarily denied. 

At sentencing McKenzie again asserted that he should 

receive the benefit of the plea bargain by receiving no more 

than 50 years in prison and his motion was also summarily denied. 

That is the extent of the record on the plea bargain issue, 

and that is the record this Court should have relied upon in 

deciding the plea bargain issue. But to do so would mean that 

McKenzie would be given affirmative relief, a result that this 

Court did not want. Instead, this Court chose to ignore the 

record. 

Although the State had ample opportunity to do so, it 

at no time during these proceedings made a record either 

refuting or denying McKenziets detailed assertions that the 

State unilaterally abrogated an enforceable plea bargain. I 

am at a loss, then, to understand how this Court was able to 
reach its decisions on this issue in McKenzie - I, 557 P.2d 

at 1038; (the issue was omitted from the McKenzie - I1 opinion) 

McKenzie 111, 608 P.2d at 438-39; and now in McKenzie -- IV, 

38 St.Rep. at 1761 (which expressly relies on the McKenzie 

- I11 holding). The record is barren of even the suggestion 

by the prosecutors that an enforceable plea bargain did 

not exist,just as the record is also barren of any suggestion 

by the State that the plea bargain was expressly subject to 

veto power by the victim's parents or the sheriff. The only 

conclusion supported -- by the record is that an enforceable 

plea bargain existed and that the State unilaterally breached 

that agreement. 

If, in the face of the actual record, this Court desired 

to fashion a remedy to enable the State to back away from an 

enforceable plea bargain, and therefore not interfere with 

McKenzie's appointment with death, it was first incumbent 

on this Court to state the facts as they appear -- in the record, 

and then somehow decide that PJcKenzie is not entitled to the 

benefit of the plea bargain. We have denied McKenzie even 

the most rudimentary appellate review, let alone the meticulous 

appellate review mandated by the United States Supreme Court 

for - all death penalty cases. 

B. THIS COURT'S DECISION IS NOT BASED ON THE TRIAL RECORD, 

BUT INSTEAD IS BASED ON UNSUBSTANTIATED STATEMENTS MADE FOR 

THE FIRST TIME IN THE STATE'S APPELLATE BRIEFS 

As already stated, this Court, in McKenzie - I, clearly 

recognized that a plea bargain existed. But, although the 

opinion is as vague as vague can be, it appears that the 

Court either held that the plea bargain was subject to an 

express condition that the State prosecutors obtain the 

consent of the victim's father and of the sheriff, or that 

the plea bargain was unenforceable because McKenzie had not 
entered his plea when the prosecutor surprised defense 

counsel by announcing that the "deal --- was off." 557 P.2d at 

1038. 

Either holding is indefensible. A holding based on 

recognition of an express condition of third party consent 

to the plea bargain is contrary to the record in this case. 

And a holding that a plea bargain can be unilaterally 

cancelled by the prosecutor before the plea is entered ignores 

both the essential basis of a plea bargain and the fact that 

here McKenzie detrimentally relied on the plea bargain. 

The opinion expressed in McKenzie 111 and - IV is 

indefensible because it is based not on the record, but on 

contentions announced for the first time in the State's 

appellate briefs. The opinion is further indefensible because 

it states that the -- trial court found --- the issue of consent - in 

favor -- of the State. This ignores the fact that there was 

neither a hearing nor findings on this issue. This Court has 

in effect, manufactured a case based on a record that does 

not exist. 

The first two paragraphs of McKenzie 111, 608 P.2d at 

438-39, recite what this Court considered to be McKenzie's 

contentions, stating several times that the events were 

alleged to occur "according to the defendant." Yes, indeed, 

even though they did occur according to the defendant, the 

undeniable fact is that the record was absolutely unrefuted 

by the State. 

The next two paragraphs of McKenzie 111, 608 P.2d 438- 

39,are devoted to discussion of the State's contentions that: 

the plea bargain was initiated by the defendant; the State had 

always maintained that any plea bargain was conditioned upon 

a veto by the victim's parents and the sheriff; the State 
could not meet with the victim's parents until December 

26; because the State could not obtain consent from the 

victim's parents there was no further plea bargaining; and 

finally, the State's assertion that McKenzie did not 

detrimentally rely on the plea bargain because the information 

given the State by the defendant was either worthless or 

already known. It may well be that these truly are the 

State's contentions--in their appellate briefs. But if so, 

the record is absolutely barren of these contentions. The 

State raised these contentions for the first time when it 

filed its brief responding to McKenzie's assertion that the 

State and the trial court had violated the plea bargain. 

The next paragraph of the Court's opinion in McKenzie 

- 111, 608 P.2d at 439, disposes of the issue, stating: 

"This issue turns on the existence of the 

alleged plea bargaining agreement. The trial 

# 

iudse - acce~ted the State's version -- ofhr - - 

situation Hnd refused to enforce the alleged 

agreement contended for by defendants. We -- hold 

that where, as -- here, the existence --- of any plea 

bargaining agreement was - disputed and there is 

substantial evidence ---- that none was made, there is 

nothing to enforce --- and the trial court's actions 

-- in this regard were correct." (Emphasis added.) 

This language is entirely contrary to the record-- 

upon which an appellate court is to base its rulings. The 

only evidence in the record does support McKenzie's contention 

that an enforceable plea bargain existed; the only evidence 

in the record is that the prosecutor unilaterally abrogated 

that agreement; and, the only evidence in the record is that 

the trial court never ruled on any disputed versions--for 

McKenzie's version -- was not disputed. The trial court simply 

refused to enforce the plea bargain. 

It is sad indeed that this Court decided this issue solely 

on representations made by the State in its appellate briefs. 
A plea bargain, in a case such as this where the death 

penalty is the real issue, certainly deserves more reliable 

consideration than this. 

Finally, in an effort to undermine McKenzie's claim 

that he detrimentally relied on the plea bargain, the 

majority again absolutely misstates the record by concluding 

that there was neither the contention nor proof by defense 

counsel that the prosecution abrogated the plea bargain in 

bad faith. The opinion states: 

"As we understand it, there is neither contention 

nor proof of bad faith by the State in its 

discussion with defense counsel on a plea bargain 

or in its effort to secure the approval of the 

sheriff or the victim's parents . . ." 608 P.2d 

at 439. 

This statement absolutely flaunts the record. At the 

January 3, 1975 meeting with the trial court and prosecutor, 

defense counsel stated: 

". . . We dealt with them [the prosecutors] in 

good faith, and now we do feel that they have 

not dealt with us in good faith. We do feel that 

this is a violation of the canons of ethics, 

specifically as it relates to candor, and specifically 

as it relates to letting someone else, some outside 

lay person, make decisions, or make legal decisions, 

as it relates to their conduct of this trial." (Tr. 

of January 3, at 16.) 

The affidavit defense counsel filed and served on the 

prosecution before this hearing stated loudly and clearly 

that the prosecution had violated the Canons of Professional 

Ethics by acting in bad faith: 

". . . your affiant believes, and has reason to 

believe, that the counsel for the State, both 

the County Attorney and Special Prosecutor, have 

misled counsel for Defendant, violated, or are 

attempting to violate, the rights of Defendant, 

and have engaged in unethical conduct in violation 

of the Canons of Professional Ethics and the Code 

of Professional Responsibility (See Canons, 5, 6, 

7, 8, 9, 15, 16, 22, 24, 25, 31, 3:,, 35, and 41 of 

the Canons of Professional Ethics.) (Defense 

counsel's affidavit at 5.) 
The majority has simply misstated the record in 

order to justify its next statement that defense counsel's 

detrimental reliance argument is unfounded. The majority 

states: 

". . . Under these circumstances any statements 

- 

of defense counsel concernina weaknesses -- in the 

state's& -- or defpositimnection 

therewith were gratuitous and premature. In any 

event, a trial is not a sporting contest in which 

the verdict turns on nondisclosure of such matters. 

Discovery procedures are designed and operated to 

remove this element and had been extensively and 

exhaustively utilized at the time in question." 

(Emphasis added.) 608 P.2d at 439. 

Again, the unrefuted record demonstrates that after 

a 3-hour long meeting with the trial court on December 23, 

1974, and after -- a plea bargain --- 

had been made, defense counsel 

met with the prosecutors at the O'Haire Manor in Great Falls 

and revealed their defense and the weaknesses in the State's 

case. This was done specifically in reliance on the plea 

bargain in an effort to permit the prosecution to better 

explain to the public, including the victim's parents and 

the sheriff, why the plea bargain was necessary. The details 

of this meeting and the reliance placed on the agreement 

are stated again in the unrefuted affidavit of defense counsel: 

"Subsequent to this meeting with the Court, 

counsel for the Prosecution and the Defendant 

met in the O'Haire Manor; pursuant to the tacit 

agreement to aid the Prosecution control the lsicl 

influencing of public opinion by the Sheriff of 

Pondera County, your affiant outlined the strategy 

and those facts that would have been emphasized 

by the defense had this matter gone to trial; 

that your affiant explained to the Prosecution 

its problem areas of proof as visualized by counsel 

for the defense; that this information was provided 

to justify the agreement heretofore entered into and 

to explain to the Sheriff that it was through his own 

ineptitude that put the Prosecution to the problem 

of possibly not being able to get certain pertinent 

evidence before the jury, and where certain assumptions 

being made by the Sheriff and Prosecution were fallacious; 

"That your affiant and co-counsel left this meeting 

with the complete and unequivocal understanding that 

a final and complete bargain had been struck by all 

parties including the Court; that counsel for the 

Prosecution were then going to apprise the family of 

the deceased and the Sheriff of Pondera County of this 

agreed upon situation; . . ." (Emphasis added.) 
Beyond these unrefuted allegations of detrimental 

reliance and good faith, I also find the majority's statement 

ridiculous that what the defense had revealed to the State was 

gratuitous, worthless, or already known. If the State had 

already known the weaknesses in its case, it would not have 

moved the court to add 58 more witnesses to the Information 

on the morning of trial. I have never heard of granting 

such a motion under such circumstances. 

"An agreement between the parties which is 

approved by the trial judge cannot be turned 

aside simply because of the exigencies of the 

moment. Public pressure and publicity certainly 

cannot justify the breach of an agreement, no 

matter how ill-considered the agreement may 

appear to have been . . . No attorney in the 

state could in good conscience advise his client 

to plead guilty and strike a bargain if that 

attorney cannot be assured that the prosecution 

must keep the bargain and not subvert the judicial 

process through external pressure whenever the 

occasion arises. 

"A plea bargain is a binding agreement between the 

defendant and the state which is subject to the 

approval of the court. When the prosecutor breaks 

the plea bargain, he undercuts the basis for the 

waiver of constitutional rights implicit in the 

plea. In Santobello - v. New - York, -- supra, 404 U.S. 

at 263. 92 S.Ct. 495, the United States Supreme 

Court noted that there are two alternative-forms of 

relief available to the defendant under these 

circumstances. The court can permit the accused 

to withdraw his plea and be tried anew on the 

original charges, or grant specific performance 

of the agreement . . . In a concurring opinion, 

Justice Douglas emphasized that 'a court ought 

to accord a defendant's preference considerable, if 

not controlling, weight inasmuch as the fundamental 

rights flouted by a prosecutor's breach of a plea 

bargain are those of the defendant, not of the 

State.' Santobello --- v. New York, supra at 267, 92 

S.Ct. at 501. " State v. Tourtellotte (1977) , 88 

Wash.2d 579, 564 P.2d 799, 802-03. 

I can only conclude that this Court's holding contrary 

to the undisputed record that there was noplea bargain is 

but another example of the arbitrary manner in which this 

State handles those cases where the underlying issue is 

whether a person is going to live or die. If this had been 
a run of the mill case, I have no doubt that this Court 

would have given this issue more careful consideration and 

concluded that there was an enforceable plea bargain. But 

somehow, this Court has adopted the policy that upholding 

a death sentence is more important than carefully scrutinizing 

the record to determine whether the defendant's rights were 

protected. What we have done to McKenzie by misstating 

the record on this plea bargain issue is absolutely indefensible. 

I cannot believe that a federal court will agree that we 

have given McKenzie the meaningful, mandatory appellate 

review which we have been ordered to give to all death 

penalty cases. 
IV. PkKENZIE WAS CONVICTED OF DELIBERATE HOMICIDE BY 

MEANS OF TORTURE--A CRIME NOT DEFINED IN MONTANA LAW 

McKenzie claimed in his first appeal to this Court 

(App. Brief, issue no. 12, Val. 11, at 178-92) and in each 

of his subsequent appeals that he was convicted of 

"deliberate homicide by means of torturew--a crime which is 

not defined by statute in Montana. This Court, however, 

has failed to address that issue in any of its opinions. 

Perhaps the McKenzie - IV opinion can be excepted from this 

statement in the sense that it does not appear that McKenzie 

again raised the issue before the District Court in his 

petition for post-conviction relief that he was convicted 

of a nonexistent crime. 

Nonetheless, this issue is so important, so fundamental, 

that this Court cannot be excused from mentioning and 

deciding the issue in either McKenzie - I, McKenzie - 11, or 

McKenzie - 111. This Court had an unequivocal duty to declare 

either that McKenzie was not convicted of a separately 

defined offense of deliberate homicide by means of torture, 

or that deliberate homicide by means of torture is a crime 

expressly defined by statute in Montana. This Court did 

neither, but left the issue undecided. It would appear, 

however, that the Court, in writing the opinion, proceeded 

on the assumption that it is a substantive offense defined 

by statute. On at least four occasions the majority opinion 

states that McKenzie was convicted of the offense of deliberate 

homicide by means of torture. See 608 P.2d at 434, 436, 

438 and 457. 

When I dissented to McKenzie -- I1 and - 111, I was unaware 

that McKenzie had previously raised the issue that he had 

been convicted of a nonexisteng crime. However, in reviewing 

the instructions in preparing a dissent to the majority's handlinq 
of the unconstitutional Sandstrom-type instructions in P1ci:enzie 

- 111, it became clear to me that McKenzie may well have been 

convicted of a nonexistent crime which added even more to 

the specter of unfairness which has permeated the handling 

of this cause at trial and on appeal. During the present 

appeal, I have taken the time to examine the record more 

thoroughly and I am now convinced that McKenzie was convicted 

of and has been sentenced to hang for the crime of deliberate 

homicide by means of torture--a nonexistent offense in this 

state. 

Section 94-5-101, R.C.M. 1947 (now section 45-5-101, 

MCA), states that "[a] person commits the offense of 

deliberate homicide if he purposely, knowingly or negligently 

causes the death of another human being." That statute then 

classifies criminal homicide into three categories--deliberate 

homicide, mitigated deliberate homicide, or negligent homicide. 

Section 94-5-102 (I), R.C.M. 1947 (now section 45-5-102 (1) , 

MCA) states that ". . . criminal homicide constitutes 

deliberate homicide if (a) it is committed purposely or 

knowingly; or (b) it is committed while the offender is 

engaged in or is an accomplice in the commission of, an 

attempt to commit, or flight after committing or attempting 

to commit robbery, sexual intercourse without consent, 

arson, burglary, kidnapping, felonious escape or any 

other felony which involves the use or threat of physical 

force or violence against any individual." It is obvious 

that neither statute mentions a substantive offense called 

deliberate homicide by means of torture. 

Subsection (2) of section 94-5-102, R.C.M. 1947 

(now section 45-5-102 (I)), MCA, provides that " [a] person 
convicted of the offense of deliberate homicide shall be 

punished by death or life imprisonment as provided in 

section 95-2206.6 through 95-2206.15, R.C.M. 1947 [now 

sections 46-18-301 through 46-18-310, MCA].. . ." The only 

statutory reference to "deliberate homicide by means of 

torture" is found in a sentencing statute (section 94-5- 

105 (1) (d) , R.C.M. 1947, now section 46-18-303 (a) , MCA) which, 

at the time of McKenzie's trial, provided: 

"(1) When a defendant is convicted -- of the 

oifense of deliberate homicide, the court shall 

impose asentence of death in the following 

circumstances, unless there are mitigating 

circumstances: 

"(a) The deliberate homicide was committed 

by a person serving a sentence of imprisonment 

in the state prison; or 

"(b) The defendant was previously convicted 

of another deliberate homicide; or 

"(c) The victim of the deliberate homicide 

was a peace officer killed while performing 

his duty; or 

"(d) The deliberate homicide was committed 

bv means of torture: or 

"(e) The deliberate homicide was committed 

by a person lying in wait or ambush; or 

"(f) The deliberate homicide was committed 

as a part of a scheme or operation which, if 

completed, would result in the death of more 

than one person." (Emphasis added.) 

The emphasized aggravating circumstance contained in 

subsection (d) is that which the trial judge changed into 

a substantive offense. 

The Information in this case charged McKenzie with 

seven counts of deliberate homicide. The first count 

charged that McKenzie purposely and knowingly caused the 

death of the victim. The second count charged that he 

purposely and knowingly caused the death of the victim by 

means of torture. The third count charges. that he purposely 
and knowingly caused the victim's death while committing 

the crimes of sexual intercourse without consent (count 4), 

aggravated assault causing serious bodily injury (count 5), 

aggravated assault causing bodily injury by use of a weapon, 

namely a rope (count 6), and aggravated assault causing 

bodily injury by use of a weapon, namely a heavy object (count 7). 

The issue of whether the prosecution could charge 

McKenzie with one count of deliberate homicide by means of 

torture, and another count (among others) of deliberate 

homicide by means of lying in wait or ambush, was raised in 

this Court for the first time before McKenzie ever went to 

trial. See, State ex rel. McKenzie v. District Court (1974), 

165 Mont. 54, 525 P.2d 1211. This case involved a petition 

for a writ of supervisory control, requesting that the trial 

court limit the charges to only those charges in which 

probable cause had been shown. This Court expressly ruled 

that the charges of deliberate homicide by means of torture 

and deliberate homicide by lying in wait or ambush do not 

constitute substantive offenses. This Court stated: 

"We believe these seven counts of deliberate 

homicide should be reduced to two, in accordance 

with the alleged facts and the statutory definition 

of the crime. The statute tells us there are 

two kinds of unmitigated deliberate homicide . . . The first kind is committed when the offense is 

committed 'purposely or knowingly.' The second 

kind is committed when the offense is committed . . . while the offender is engaged in or is an 

accomplice in the commission of, or an attempt to 

commit, or flight after committing or attempting 

to commit robbery, sexual intercourse without consent, 

arson, burglary, kidnapping, felonious escape or 

any other felony which involves the use or threat 

of physical force or violence against any individual.' 

The first count should be similar to the first count 

in the present information; i.e. it should simply 

allege that the crime was committed 'purposely and 

knowingly.' The second count should allege 

alternatively that the crime was committed while 

the relator was engaged in other felonies. These 

could include aggravated assault, sexual intercourse 

without consent and aggravated kidnapping. 
"It -- is neither appropriate nor necessary to 

base separate counts - on torture or lying - in 

wait, counts 2 and 3. Section 94-5-105. 

criminal ~ode-o?-i913, --- deals with sentencing -- 

--- and does not define a specific crime. If 

torture or lying in wait, or both, are alleged 

as part of the second count, the defendant is 

sufficiently notified of what the prosecution 

intends to prove. If justified by the evidence, 

the court may instruct on these two features and 

ask for a special verdict on them to assist in 

fixing the penalty." State ex rel. McKenzie v. 

District Court (1974), 165 Mont. 54, 64-65, 525 

P.2d 1211, 1217. (Emphasis added.) 

It appears that the prosecutor dismissed counts 2 and 

3 after that ruling, but then amended the Information so 

that McKenzie was charged with: 

". . . DELIBERATE HOMICIDE, a felony,. . . by 

purposely or knowingly causing the death of the 

said LANA HARDING: 

"1. by means of torture; or 

"2. by lying in wait or ambush;. . ." 

I think it is fair to assume that the prosecutor intended 

to charge McKenzie with deliberate homicide and then 

additionally alleged his theories relating to the methods 

by which that homicide occurred. The trial judge, however, 

ignored this Court's ruling in State ex rel. McKenzie v. 

District Court, supra, and in fact, instructed the jury at 

both the beginning and the end of the trial that McKenzie 

was charged with the crimes of deliberate homicide by means 

of torture and deliberate homicide by lying in wait or ambush. 

Both the defense counsel and the prosecutors objected 

to these instructions before the trial began, and they filed 

written objections to the instructions. The prosecutors' 

written objections stated: 

"That said PRELIMINARY INSTRUCTIONS include 

misstatements of the law, and are confusing 

and redundant. 

"That said Preliminary Instructions give no 

citation as to source or authorities. 
"[Instruction no. 231 That the title 'Deliberate 

Homicide by Means - of Torture' incorrectly states 

the crimecharged, which is 'Deliberate Homicide' 

Section 94-5-102. The matter of - torture arises 

under the punishment statute, Section 94-5-105 

(1) (d).~hat the use of the title 'Ueliberate 

Homicide By Means of Torture' is misleading. 

"[Instruction no. 241 -- That the title 'Deliberate 

Homicide By Means of Lying in Wait or Ambush' 

incorrectly statesthemcharged, which is 

'Deliberate Homicide,' Section 94-5-105(1)(e). 

That the use of the title 'Deliberate Homicide 

by Means of Lying in Wait or Ambush' is misleading. 

That the use of the terms 'killing' and 'kill' is 

improper. Such terms are not found in any 

applicable statute. That the proper term is 

'causes of death of,' as cited in Section 94-5- 

101." (Emphasis added.) 

Notwithstanding the prosecutors' and defense counsel's 

objections to the court's proposed 'Preliminary Instructions,' 

the trial court determined nonetheless to give them exactly 

as proposed. 

At the beginning of the trial, just before the trial 

started and the court was to give its 'Preliminary Instructions,' 

defense counsel again objected to the instructions creating 

the offense of deliberate homicide by means of torture and 

deliberate homicide by means of lying in wait or ambush. 

The following exchange took place between court and defense 

counsel : 

"Defense counsel: Will you give us the 

statutory-place that you find deliberate homicide 

by means of torture offense? 

"The Court: This is punishable by death, period. 

They said it is a punishment offense. -- If they 

say it is a punishment offense --- it is an offense. 

In the statute you will find in the common law 

and in the case law, that is the only place you 

are going to find it." (Tr. at 183; emphasis added.) 

Defense counsel lodged the following objection: 

"At this point may the record indicate we 

object to all the instructions which any 

place indicate that there is an offense named 

deliberate homicide by means of torture, 

deliberate homicide by lying in wait, -- since we 

-- find - no statute which says that such a thing 

exists." (Tr. at 183; emphasis added.) 
The pertinent instructions which were read tothe 

jury before the presentation of the evidence, and then 

taken by the jury to the jury room at the time the case was 

submitted to the jury, read as follows: 

Instruction - No. - 22. Deliberate Homicide Defined. 

"In this case, insofar as we are concerned with 

the offense of deliberate homicide, you are 

instructed: 

"Deliberate homicide is one kind of criminal 

homicide. Homicide is deliberate homicide if: 

"(a) it is committed either purposely or 

knowingly; 

"(b) it is committed while the offender is 

engaged in or is an accomplice in the commission 

of, or an attempt to commit kidnapping, or any 

other felony which involves the use or threat of 

physical force or violence against the individual. 

"Proof that the defendant acted both purposely 

and knowingly is not required. Proof of either 

of said mental states is sufficient." 

Instruction No. - -- 23. Deliberate Homicide by Means 

of Torture Defined. 

"Deliberate homicide by means of torture insofar 

as we are concerned with the definition thereof 

in this case is: 

"Whoever purposely assaults another physically 

for the purpose of inflicting cruel suffering 

upon the person so assaulted for the particular 

purpose of enabling the assailant to either: 

"(a) extort anything from such person; 

"(b) or to persuade such person against his 

or her will, or 

"(c) to satisfy some untoward propensity of 

the assailant, 

"and in so doing the assailant causes the death 

of the person he assaults, in the law is guilty 

of the offense of Deliberate Homicide by Means 

of Torture, whether or not it was the purpose 

or intention of the assailant to cause such death. 

"'Untoward propensity' means any perverse, wrong, 

bad or corrupt inclination or tendency." 

Instruction No. -- 24. Deliberate Homicide by Means 

of Lying in Wait or Ambush Defined: 
"~eliberate Homicide by means of lying in wait 

or ambush, insofar as we are concerned with the 

definition thereof in this case is: 

"Whoever conceals himself, and watches and waits 

for another with the particular purpose of taking 

such person unawares, and killing him, and he does 

kill him is Guilty of Deliberate Homicide by means 

of lying in wait or ambush." 

By these instructions, the trial court unequivocally 

told the jury that McKenzie was charged with three substantive 

homicide offenses--deliberate homicide (instruction no. 22); 

deliberate homicide by means of torture (instruction no. 23); 

and deliberate homicide by means of lyirig in wait or ambush 

(instruction no. 24). I note, however, that the charge of 

deliberate homicide by means of lying in wait or ambush is 

not a direct factor in the error committed in this case, 

because that charge was dismissed at the conclusion of the 

trial because of insufficient evidence to support it. 

In instruction no. 29, the trial judge distinguished 

the mental states that the jury must find to have accompanied 

the charged acts of deliberate homicide and deliberate 

homicide by means of torture. That instruction stated: 

"The offense of Deliberate Homicide requires that 

the voluntary act (the Killing) have been 

committed by the defendant either knowingly or 

purposely or that it was committed in the commission 

of a forcible felony. 

"The offense of Deliberate Homicide by Means - of 

Torture requires that the voluntary act (the 

physical infliction of cruel suffering) be done 

purposely and in addition thereto that it was done 

for the particular purpose of enabling the 

,assailant either: 

"(a) to extort something from the person assailed; 

or 

" (b) to persuade the assailed against his or her 

will; 

"(c) to satisfy some other untoward propensity 

of the assailant. . . . " (Emphasis added. ) 
The last sentence of paragraph I1 told the jury that 

it need not find that McKenzie intended t o k i l l the victim 

of torture. 

in order to find him guilty of deliberate homicide by means/ 

Paragraph I11 of this instruction sets forth the mental 

state the trial judge decided was necessary for a conviction of deliberate homicide while lying in wait or ambush. 

However, the trial judge crossed out paragraph I11 with a 

large X and wrote "Dismissed-Disregard" near it. 

One of the final instructions to the jury (instruction 

no. 54) directed the jury to first consider the charge of 

deliberate homicide by means of torture before deciding any 

of the remaining charges. It states in pertinent part: 

"If you adopt the Guilty of Deliberate Homicide 

verdict form you are asked to find on that form 

whether the ~eliberate Homicide was by Means of 

Torture as this is the most serious of the remainina ----- -- ., 

charges of deliberate homicide made against the 

defendant," (Emphasis added.) 

Notwithstanding the fact that the trial court instructed 

the jury that the charge of deliberate homicide by means of 

torture was the most serious of the remaining charges (the 

charge of deliberate homicide by means of lying in wait or 

ambush had been dismissed), the trial court also instructed 

the jury that McKenzie need not have the intent to kill his 

victim in order to be convicted of the offense of deliberate 

homicide by means of torture: 

Instruction No. 34. Methods of Proof Applicable 

to ~eliberate~omicide by Means of Torture: 

"The mental state of purposely assaulting another 

physically to inflict cruel suffering upon that 

person for a particular purpose cannot be proved 

by using the legal presumptions you have been 

directed to use in the proof of deliberate 

homicide, and must be proved by the use of 

inferences alone. 

"Therefore, if you find from the evidence beyond 

a reasonable doubt that the defendant, on or 

about January 21, 1974, in Pondera County, Montana, 
purposely assaulted Lana Harding physically 

and inflicted cruel suffering upon her and in 

so doing caused her death, you are permitted 

to infer, that is, deduce or reason from the facts 

and circumstances which are proved in connection 

therewith, that he did so for one or more of the 

particular purposes; either, 

" (a) to extort something from her, or 

"(b) to persuade her to do something against her 

will, or 

"(c) to satisfy some other untoward propensity 

of the defendant. 

"And if you find one or more of said particular 

purposes to have been proved beyond a reasonable 

doubt and that the defendant killed her while 

purposely so inflicting cruel suffering upon 

her, -- he has committed the offense of Deliberate 

Homicide by Means of Torture, whether -- it was 

---- or was nothis intention to kill her." (Emphasis 

added. ) 

The problem with these confusing instructions becomes 

abundantly clear when the verdict forms are considered. 

The trial judge provided the jury with only one guilty 

verdict form for deliberate homicide. That verdict form 

provided : 

"A. We the jury in the above-entitled cause 

find the defendant guilty of the offense of 

Deliberate Homicide as charged. 

"B. We further find that the Deliberate 

Homicide (was) (was not) by Means of Torture. 

"(Strike out the bracketed word or words which 

do not apply." 

In order to complete this verdict form, it was necessary 

for the jury to refer to instruction no. 23 (defining 

deliberate homicide by means of torture), instruction no. 

29 (defining requisite mental state for deliberate homicide 

by means of torture), and instruction no. 34 (methods of 

proof applicable to deliberate homicide by means of torture). 

Reference to these instructions established that (1) McKenzie 

could be convicted of a separate offense called dkliberate 

homicide by means of torture, and (2) the jury could convict 
for this dffense whether ---- 

or not it was McKenziers intent 

--- to kill the victim. 

The homicide conviction can be upheld against an attack 

that the jury convicted him of a nonexistent crime, only 

by a declaration of an appellate court that the erroneous 

jury instructions were harmless error. To reach that 

judgment here an appellate court would have to conclude 

beyond a reasonable doubt that the jury, despite the erroneous 

instructions, nonetheless found - all of the elements to exist 

to sustain a conviction for deliberate homicide. The essential 

facts are not the same, however, and there is no basis to 

determine this question. Contrary to the deliberate homicide 

instructions, which require that the jury find an intent to 

kill the victim, the deliberate homicide by means of torture 

instructions permitted the jury to convict McKenzie of this 

offense "whether ------ it was or was not his intention to kill her." 

Under even the most lenient test of appellate review, 

an appellate court would be compelled to declare that the 

instructions creating and defining a nonexistent crime of 

deliberate homicide by means of torture were not harmless 

error, and in fact, that the probability is that the jury 

convicted McKenzie of this nonexistent crime. Because, 

however, this is a death penalty case, I believe that the 

stringent test for harmless error, as set out in Chapman v. 

California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 

must be applied. Under this test, an appellate court must 

be prepared to declare beyond a reasonable doubt that the 

jury verdict was correct despite the erroneous instructions. 

in this case 

To make that declaration/an appellate court would have to bury 

its head in the sand. 
The jury verdict, insofar as the death penalty is 

concerned, is defective because a death sentence must be 

based on a jury decision that the defendant possessed the 

purpose of killing the victim. I agree with Justice White 

that it is violative of the Eighth Amendment to impose the 

death penalty without such a jury finding. Lockett v. Ohio 

(1978), 438 U.S. 586, 624, 98 S.Ct. 2954, 2983, 57 L.Ed.2d 

973, 1002, (White, J., concurring). Instructions expressly 

permitted the jury to find McKenzie guilty of that offense 

"whether ------ it was or was not his intention -- 

to kill" the victim. 

Because of these instructions, in order to uphold the death 

penalty, an appellate court would have to state that despite 

the instructions, the jury found that McKenzie - did intend to 

kill the victim. The record in this case forecloses such a 

declaration. 

The United States Supreme Court has made abundantly 

clear that any procedures at trial which diminish the reliability 

of the guilt determination can invalidate the imposition of 

a death penalty. In Beck v. Alabama (1980), 447 U.S. 625, 

638, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392, 403, that 

Court stated: 

"To insure that the death penalty is . . . imposed 

on the basis of 'reason rather than caprice or 

emotion,' [the courts] have invalidated procedural 

rules that tended to diminish the reliability of 

the sentencing determination. -- The same reasoning 

must apply to rules that diminish the reliability 

-- of the guiltdetermination." (Emphasis added.) 

What can be a better case to apply this rule than here 

where the trial judge created and instructed the jury on a 

substantive offense not defined by statute, where there is 

the highest of probabilities that the jury convicted McKenzie 

of that offense--deliberate homicide by means of torture, and 

where the jury was also told to decide the question of 
intent by the use of eight unconstitutional Sandstrom-type 

instructions? The jury's verdict, and the sentencing court's 

death sentence based on that verdict, is so unreliable that 

due process requires not only that the death penalty be 

vacated but that the conviction be reversed. 
V. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A FINDING 

THAT THE VICTIM DIED BY MEANS OF TORTURE 

An issue raised in all of McKenzie's appeals, and which 

goes to the heart of whether a death sentence can be imposed, 

is his contention that there is not substantial evidence to 

support the jury's finding that the victim met her death by 

means of torture. Nowhere in any of the four opinions issued 

in this case has this Court set forth the evidence which would 

support this finding. .The evidence discloses that the victim 

had been choked with a rope around her neck, and that at some 

point the pressure of the rope around the neck was somewhat 

released. The evidence establishes that the victim's death 

was caused by a brutal beating with a heavy instrument which 

laid open the right side of her head. However appalling the 

circumstances are, these facts do not establish that the 

victim met her death "by means of torture." 

Before discussing this issue as it relates to the 

imposition of the death penalty, I must first preface my 

remarks with the horrible, procedural problems which have 

followed this case from beginning to end--procedural problems 

that belie even the suggestion that McKenzie received a fair 

trial. I have already concluded in part IV of this dissent, 

that the jury most likely convicted McKenzie of a nonexistent 

crime--deliberate homicide by means of torture. Assuming this 

to be the case, it matters little whether substantial evidence 

supports the jury's finding that the victim met her death "by 

means of torture." Tf McKenzie was convicted of a nonexistent 

crime, he cannot be punished for that crime, and therefore, 

that conviction must be reversed and dismissed. 

Assuming that the jury did convict McKenzie of deliberate 

homicide under either section 94-5-102 (a) or (b) , R.C.M. 1947 

(the only permissible methods by which a deliberate homicide 

could be charged and a conviction upheld), and further assuming 
that the trial court properly instructed the jury on the 

definition of deliberate homicide "by means of torture," the 

question becomes: -- was the victim tortured? If substantial 

evidence supports the jury's finding, then the sentencing 

court did have a legal basis for imposing the death penalty, 

but if there is not substantial evidence, then the sentencing 

court had - no legal basis for imposing the death penalty. 

McKenzie raised this issue in his first appeal, but it 

was not mentioned in McKenzie - I nor specifically discussed in 

either McKenzie - I1 or - 111. Undoubtedly, the author of McKenzie 

- I1 and - I11 relied on the issues as they were stated in McKenzie 

The only facts concerning the manner in which the death 

occurred were set forth in a general factual statement in 

McKenzie - I, 557 P.2d at 1027, and repeated in McKenzie - 11, 587 

P.2d at 1-10, and in McKenzie 111, 608 P.2d at 435: 

"On the morning of January 23, Wednesday, the 

body of Lana Harding was found at a location 

called the 'drill site' in the area of K & K 

Wholesale Seed & Co. The body was clothed only 

in a shirt, sweater and bra and it was draped over 

the tongue of a grain drill. She had been severely 

beaten about the head and body. The forensic 

pathologist who examined the body testified the 

death blow was one that was delivered to the head 

and laid open the right side. A rope was tied 

around her neck and there was evidence she had 

been strangled with it but pressure had been 

released so she did not die of strangulation. 

Entangled in her hair was a coil of wire, later 

shown to have come from a roll of wire found in 

the back of the Dodge pickup." 557 P.2d at 1027. 

The Court, however, states no facts which actually support 

the finding that the deliberate homicide occurred by means of 

torture. 

The Court did not elaborate in McKenzie - 11. The same 

essential facts were stated and the substantial evidence question 

was decided later in the opinion. The Court stated the issue 

as follows: 
"Defendant argues the evidence is insufficient to 

justify the verdicts against him. He specifically 

argues that the evidence is insufficient to support 

the verdicts that defendant committed deliberate 

homicide by torture and that as a result of her 

aggravated kidnapping, Lana Harding died." 581 P.2d 

at 1226. 

The Court did not bother to discuss the evidence supposedly 

supporting each of these findings. Instead, it lumped the 

issues together and concluded that substantial evidence did 

indeed exist. The Court held: 

"In this case, the evidence presented to the 

jury did not mislead them, nor was any of it 

ever misrepresented to them. The evidence was 

sufficient to justify the jury's finding that 

Lana ~ardingwas killed by means of torture and 

-------- 

that shedied mlrof her aggravated 

kidnapping by defendant." (Emphasis added.) 581 

P.2d at 1226. 

This constitutes the Court's entire analysis of the evidence 

and law on two issues absolutely vital to imposition of the 

death penalty. 

Finally, in McKenzie 111, 608 P.2d at 447-48, this Court 

again relied on the same statement of facts used in McKenzie 

- I and - 11. Then, in another part of the opinion, the substantial 

evidence issues are again decided. In reviewing these two jury 

findings that are absolutely vital if a death sentence is to 

be upheld, the Court states: 

"Defendant argues the evidence is insufficient 

to justify the verdicts rendered against him. 

He specifically argues that the evidence is 

insufficient to support - the verdicts thatdefendant cornim tted deliberate homicide by 

means of torture ---- and that as a result -- ofher 

aggravated kidnapping, Lana Harding died. This 

borders -- on the frivolous.. . . 

"In this case, the evidence presented to the 

jury - - did not mislead them, nor was any of it 

ever misrepresented to them. The evidence 

was sufficient to justify the jury's finding 

-- that Lana ~ardins ----- was killed bv means of torture 

and that she died as a result of -- her aGravated a a 

kidnapping - by defendant. 
"The ----- rule is that if substantial evidence is 

found to support - the verdict, -- it mnd. 

(citations omitted.) ----- Such is the casehere." 

(Emphasis added.) 608 P.2d 447-448. 

This again constitutes the Court's entire review of 

the j ury ' s two findings . 

This review of these vital questions falls far short of 

the careful scrutiny mandated by the United States Supreme 

Court in all death penalty cases. 

Deliberate homicide "by means of torture" is not a selfdefining term. I am uncertain whether this requires that the 

death actually be caused "by means of torture" or whether it 

is sufficient that the victim was tortured at some time before 

death, even though the torture did not cause the death. This 

language, then, fails to contain the explicit guidelines necessary 

to meet the exactitude required of a death penalty statute. 

Especially because this is a death penalty statute, I would 

declare it unconstitutional for vagueness. I find it strange 

indeed that the majority opinion has ignored the clear ambiguity 

of the statute. It would seem that this statute, to be constitutional, must have either one meaning or the other, but here 

its meaning has still been left in doubt. 

A necessary corollary to the ambiguity of this statute, 

assuming that the statute is not unconstitutional, is that it 

is at least ambiguous on its face and therefore requires judicial 

construction to give meaning to the statute. This judicial 

construction, because it is a death penalty case, must be based 

on the premise that the statute is to be strictly construed 

against the State. Applied here, the State must prove not only 

that the victim was tortured, but also that the victim's death 

was caused by that torture. The evidence falls far short of 

this requirement. 
The jury's verdict fails to disclose the basis for 

its decision--that is, what acts constituted the torture, and 

what conduct was relied on in inferring that McKenzie had 

the intent to torture the victim. The sentencing court's 

findings (based primarily on the jury's verdict) are equally 

vague. The only two findings on this issue state: 

"4. The evidence in the case, and as found by 

the jury, discloses a brutal, conscienceless, 

torture, rape and deliberate killing of a human 

being. 

"6. That the jury rejected the verdict form 

finding the defendant not guilty by reason of 

a mental disease or defect which excludes 

responsibility for criminal conduct which was 

submitted to them - and correctly found the 

defendant guilty of deliberate homicide which -- 

was ---- by meansttorture, and guilty of Aggravated 

Kidnapping which resulted in the death of the 

victim." (Emphasis added.) 

These findings reflect that the trial court relied on 

the jury's verdict. The findings are devoid of any evidence 

from which the trial court could conclude that the victim was 

in fact tortured. The jury's verdict, the trial court's findings, 

and this Court's three opinions fail to set forth evidence 

supporting a finding of deliberate homicide "by means of torture." 

What acts show that McKenzie intended to torture? What 

evidence shows that the victim suffered extreme pain? In fact, 

what evidence shows that the victim was conscious when any of 

the injuries were inflicted? 

As I stated before, the term "deliberate homicide by 

means of torture" is not self-defining. Nor do any Montana 

cases or statutes define "torture." Two factors, however, are 

essential to "torture," and this is particularly so where 

the "torture" is considered to be an aggravating circumstance 

which may trigger imposition of the death penalty. First, 

the essential question is whether the defendant intended the 
victim to suffer extreme pain before death. I find absolutely 

no evidence in the record that McKenzie intended to torture 

his victim. 

Second, the death penalty statute is silent on whether 

it requires the State to prove that the victim did in fact 

suffer extreme pain before death. Torture obviously implies 

extreme pain, and therefore I believe that, in the absence of 

legislative direction, strict construction of the statute 

against the State requires the State to prove that the victim 

suffered extreme pain as a result of the torture. The 

legislature had the right to explicitly define the term 

"deliberate homicide by means of torture," but instead left 

the statute ambiguous. Because of the ambiguity of this statute, 

a doubt arises, and an appellate court must, in construing 

the statute in a death penalty case, give the benefit of that 

doubt to the accused. Beck v. Alabama (1980), 447 U.S. 625, 

100 S.Ct. 2382, 65 L.Ed.2d 392; Andres v. United States (1948), 

L.Ed. 1055. 

333 U.S. 740, 68 S.Ct. 880, 92/ Strict construction demands 

that we require proof that the victim suffered extreme pain 

as a direct result of torture before her death. As I have 

already stated, the record does not support such a determination. 

Another requirement is that the torture must have caused 

the victim's death. A pathologist testified that death was 

caused by massive blows to the head. These blows cannot be 

called torture, nor can it be inferred that by these blows 

that McKenzie intended to torture his victim. The only possible 

evidence of torture is the fact that a rope was wrapped around 

the victim's neck and at one time the pressure of the rope on 

the neck was somewhat released. The pathologist, however, 

could not establish that the victim was conscious at the time 

this was done, and, more importantrl.1,lie testified that death 

was not caused by st;ranguhthn, but by massive blows to the victim's 
head. This evidence clearly does not support a finding that 

death was caused "by means of torture." 

Nor does the evidence establish that McKenzie - intended 

to torture the victim. The only evidence is indirect evidence-- 

the condition of the victim's body and the manner in which the 

assault took place. It cannot be doubted that the body was 

savagely beaten, but murder by torture cannot be inferred 

either from the condition of the body or from the manner in 

which the assault took place. 

In People v. Wiley (1976), ln3 Cal.Rep. 135, 18 Cal.3d 

161, 554 P.2d 881, the State of California, in seeking to 

uphold a murder by torture conviction, argued that torture 

could be inferred from the condition of the victim's body 

and from the manner of the assault. In rejecting this argument, 

the California Supreme Court stated: 

". . . She [the appellant] correctly notes that 

murder by torture cannot be inferred solely from 

the condition of the victim's body. (People v. 

Bevea (1974), 38 CaLApp.3d 176, 201, 113 Cal.Rptr. 

254), or from the mode of assault or injury suffered 

(People v. Tubby (1949) 34 Cal.2d 72, 77, 207 P.2d 

51), but other evidence of intent to cause suffering 

-- is -- also reauired. r~itazons omitted.]" (Emphasis 

added.) 5<4 P.2d at 884. 

That situation applies here. Evidence established that 

the victim had been savagely beaten, but the condition of 

her body did not establish that she was tortured. Nor can the 

fact that she was choked affirmatively establish that McKenzie 

intended to torture her. In People v. Bender (1945), 163 P.2d 

8, 16, the California Supreme Court, in reviewing a contention 

that strangulation establishes the fact of torture, stated: 

"The evidence does not, as the People contend, 

compel the inference that the killing was murder of the 

fiwt degree perpetrated by means of torture. 

[Citations omitted.] Whether or not the two wounds 

on deceased's head, the immediate cause of 

death, were the result of defendant's striking 

her with a blunt instrument, the evidence, as 

a matter of law is insufficient to prove torture. 
The killer who, heedless of the suffering of his 

victim, in hot anger and with the specific intent 

of killing, inflicts the severe pain which may 

be assumed to attend strangulation, has not in 

contemplation of the law the same intent as one 

who strangles with the intention that the victim 

shall suffer.. . . " 

The Court also expressly rejected any implication in People 

v. Duggan (1943), 61 Cal.App.2d 379, 143 P.Zd 88, that. 

choking constitutes torture as a matter of law. 163 P.2d at 

16. The holding in Bender is especially applicable here 

because we are interpreting a death penalty statute which must 

be strictly construed against the State. Strict construction 

of the statutory language--"deliberate homicide by means of 

torturev--requires an appellate court to hold that choking 

does not, as a matter of law, establish torture. 

Even a disagreement as to whether the statute is unconstitutionally vague on its face must give way at least to a 

conclusion that it must be strictly construed against the 

State. Here the evidence is insufficient to support the jury's 

finding, no matter which interpretation is used. The evidence 

does not establish that McKenzie intended to cause and did in 

fact cause the victim's death by means of torture. Nor does 

the evidence establish that McKenzie tortured the victim before 

he caused her death by means other than torture. Nonetheless, 

strict construction requires the statute be interpreted to mean 

that the death was caused by "means of torture." The torture 

must cause the death. Here there is no evidence that any of 

McKenziels actions which might be characterized as torture by 

even the most liberal interpretation of the evidence, caused 

the death of the victim. The blows to the head which caused 

death are not the kind of blows which can be characterized as 

torture. 

Clearly, then, the finding of "deliberate homicide by 

means of torture" is not supported by substantial evidence, 

and therefore, a necessary prerequisite to the imposition of the 

death penalty has failed. 
VI. DENIAL OF EQUAL PROTECTION OF THE LAW: SEARCH AND 

SEIZURE, LESSER-INCLUDED OFFENSE INSTRUCTIONS, AND SANDSTROM 

INSTRUCTIONS 

Because this Court has so inadequately dealt with the 

issues raised, and has glossed over the real issue, I 

quote from McKenziels brief where he argues he has been 

denied--by this Court--equal protection of the laws: 

"As discussed above, the law this Court applied 

in Petitioner's case at trial and on appeal was 

wholly inconsistent with established Montana 

authority: on the tests and procedure for obtaining 

warrants, on submission to the jury of lesser 

included offenses clearly supported by the evidence, 

and on the harmless error test in Sandstrom violations, 

amons other issues. From the outset of this case, 

petitioner has been placed in a class by himself on 

these points, while he has been tried under an outdated 

and unconstitutional statute applicable only to one 

case, his. 

"With all respect, Petitioner submits this Court has 

shifted the grounds for its decisions, acting consistently only in affirming Petitioner's conviction 

and death sentences. Petitioner and Petitioner alone 

has been permitted to (be) [sic] tried by a jury 

instructed on the law so erroneous under Sandstrom 

that both he and the prosecution objected--through 

application of a 'harmless error' test uniquely 

used in this case. Only in his case has a search 

warrant been allowed to be based on unrecorded 

'testimony.' Only in his case has a judge been 

allowed to refuse to instruct on a lesser included 

offense clearly warranted by the evidence submitted 

in his defense, the offense of mitigated deliberate 

homicide (see Defendant's Proposed Instruction No. 

21, 25--an error of constitutional dimension affecting 

the reliability of his conviction. Cf., Beck v. 

Alabama, 48 U.S.L.W. 4801 (June 20, 1980). Only in 

his case has the repealed Montana Death Penalty Law 

been allowed to remain in force after a new law, with 

different protections, was enacted. 

"This allegation is not based on Petitioner's 

observation alone. Cf., State v. McKenzie, supra, 

608 P.2d at 459-488 (Shea, J., dissenting). Petitioner 

has not been fairly and equally treated in this case. 

He is entitled to the same rights afforded any other 

criminal defendant tried in this State. The failure 

to afford him those rights, and this death sentence 

imposed under this one-case set of legal rules, 

constitutes a fundamental denial of equal protection 

of the law." Petitioner's Brief, pp. 20-21. 

In congratulating itself on the review given to McKenzie, 

the majority opinion states: 
". . . It will he noted that some of the issues 

have been considered by this Court not once but 

two and three times. In all the annals of 

criminal justice in this state, we find no case 

in which a single defendant has received more 

tender legal care (using 'tender' in the sense 

of careful and sensitive handling)." 38 St.Rep. at 1749. 

If what has happened in this case is the majority's 

idea of tender legal care, I doubt that anyone in this 

state would like to have his case similarly considered. 

To an offer of this Court of such "careful," and "sensitive" 

treatment, any person in his right mind would unhesitatingly 

respond: "Thanks, but no thanks." 

A. SEARCH AND SEIZURE 

McKenzie's allegations on the search and seizure issues 

are simple, direct, and correct. He argues that rules on 

search and seizure must be applied uniformly. But he contends 

that instead he has been isolated and special rules on search 

and seizure have been applied to him that have not applied to 

other defendants. I must agree. I state first that I adhere 

to my dissent in State v. McKenzie (1978), 177 Mont. at 333, 

581 P.2d 2.t1235,on the search and seizure questions. There, 

I set out just how we had violated the Montana and United 

States Constitutions in holding the search and seizure to 

be valid. 

But McKenzie now raises the same issues in a different 

context. He contends, of course, that his constitutional 

rights were violated. But his claim now is that in addition 

to violating his rights directly, we have also violated his 

rights because we have denied him equal protection of the 

law by selecting him as the only person who does not have 

constitutional rights. (McKenzie's brief on appeal, pages 

5-7, 20-22.) The majority has ignored this issue except 
to say that the issues are res judicata. The issue of 

denial of equal protection is not res judicata, however, 

and the majority has failed to answer it. 

McKenzie first contends that the majority violated the 

four-corners rule, contrary to all previous and all later 

decisions of this Court, by permitting unwritten (and 

possibly even unsworn) testimony in support of an application 

for a search warrant. McKenzie is absolutely correct. I 

dissented on this issue in McKenzie - 11, 177 Mont. at 337, 

581 P.2d at 1237, and I need not repeat that dissent here. 

The facts speak for themselves. 

I note, furthermore, that Justice Morrison, not on this 

Court in any of the previous McKenzie appeals, has also 

decided that the search warrant application violated the 

constitution. 

But now the majority has relied on a new res judicata 

rule to deny each of McKenzie's claims relating to illegal 

search and seizure. In denying review of these issues, we 

have effectively denied him equal protection of the law. The 

facts are irrefutable that we have applied different constitutional 

standards to McKenzie than to any other criminal defendant. 

McKenzie's second argument contends that the application 

for the search warrant, and the search warrant itself were 

overbroad, lacking the specificity required and consequently 

that the search was converted into an unconstitutional 

general search--a dragnet operation. Again, I agree. I 

dissented on this issue in McKenzie - 11, 177 Mont. at 333, 

581 P.2d at 1236, and I need not repeat that dissent here. 

And just as surely, the majority cannot take refuge 

in the special McKenzie res judicata rule applied here. 
Never has this Court permitted a search warrant, and 

never has this Court permitted a search as broad and 

general as was undertaken in this case. We have sillq.led8 

out McKenzie as one who cannot assert that the search was 

converted into a general dragnet operation devoid of any 

constitutional restraints. 

Third, McKenzie argues that even assuming probable 

cause evidence could be received beyond the confines of 

the search warrant application, probable cause still did 

not exist for the issuance of a search warrant. Again, I 

agree. I dissented on this issue in McKenzie - 

11, 177 Mont. 

at 382, 581 P.2d at 1263, and I need not repeat that 

dissent here. 

This issue has never been fully and finally decided 

because the majority never set forth the evidence contained 

in the application for a search warrant. A general conclusion 

as to sufficiency cannot be substituted for a factual statement setting forth the evidence contained in the application. 

In failing to set forth this evidence, the majority has 

again applied different constitutional standards to McKenzie 

than to any other criminal defendant, and he has been denied 

equal protection of the law. 

Fourth and finally, McKenzie has raised a search and 

seizure issue which this Court has steadfastly refused to 

mention in its opinions. Even assuming that the four-corners 

rule did not apply to search warrant applications, McKenzie 

argues that all of the evidence or testimony presented to 

the justice of the peace still did not establish that there 

were seizable items at the places to be searched. McKenzie 

is again correct. The application for search warrant only 
describes the places to be searched, it does not state 

any evidentiary basis by which it can be concluded that 

the seizable items would be found there. Nor do any of 

the unrecorded statements establish a basis to conclude 

that seizable items would be found at the places described 

in the search warrant application. In fact, there is not 

even an attempt to establish this necessary constitutional 

nexus. I dissented on this issue in McKenzie - 11, 177 Mont. 

at 378, 581 P.2d at 1260, and again I need not repeat that 

dissent here. 

Because the majority has never decided McKenzie's 

claim that in applying for the search warrant the State 

made absolutely no showing that seizable items would be 

found at the places to be searched, I fail to see that 

this issue is precluded even by this Court's application 

of its special McKenzie res judicata rule. How can an 

issue be fully and finally decided if it has been entirely 

ignored? 

It has always been fundamental and axiomatic to 

constitutional law that probable cause to obtain a search 

warrant must include probable cause to search the place 

or places described in the application for the search 

warrant. If a reasonable basis is not provided for tile 

magistrate to believe that seizable items are located at 

the place to be searched, there cannot be a search, it is 

as simple as that. Zurcher v. Stanford Daily (1978), 436 

U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525. See also Carroll 

v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed 

543; and Brinegar v. United States (1949), 338 U.S. 160, 

69 S.Ct. 1302, 93 L.Ed. 1879. 
But here the search warrant applications made absolutely 

no attempt to show a reasonable basis to believe that 

seizable items would be found at the places to be searched. 

Even this Court has recognized this axiomatic principle 

of search and seizure law. In State v. District Court (1921), 

59 Mont. 600, 198 P. 362, this Court quoted some fundamental 

principles of search and seizure law from Cooley on Constitutional Limitations: 

". . . But as search warrants are a species of 

process exceedingly arbitrary in character, and 

which ought not to be resorted to except for 

very urgent and satisfactory reasons, the rules 

of law which pertain to them are of more than 

ordinary strictness; and if a party acting under 

them expects legal protection, it is essential that 

the rules be carefully observed. In the first 

place, they are only to be granted in the cases 

expressly authorized by law, and not generally in 

such cases until after a showing made before a 

judicial officer, under oath, that a crime has been 

committed and that the party complaining has 

reasonable cause to suspect -- that the offender, - or 

the property whichwas -- the subject -- or the 

instrument -- of the crime, - is concealed in -- some 

specified house -- or place. And --- the law, in requiring 

a showing of reasonable cause for suspicion, intends - -- that evidence ------ 

shall be given of such facts as shall 

satisfy - the magistrate -- that the suspicion - iswell -- 

founded; for the suspicion itself -- --- is no ground 

-- for the warrant except -- as the facts justify it." 

(Emphasis added.) 198 P. at 365. 

The situation before us is not a question of determining 

how much evidence is sufficia-kto provide the magistrate with 

reasonable grounds; rather,the situation here is that the 

search warrant applications provided absolutely no basis for 

the magistrate to independently determine that seizable items 

were located on the premises to be searched. Because of this 

major defect in the search warrant application, all items 

seized pursuant to the execution of that search warrant were 

illegally seized. 

I have no hesitation in stating that this Court, by 

denying McKenzie the fundamental constitutional protections 
guaranteed by the state and federal constitutions, by its 

selective application of search and seizure law, has added 

another constitutional violation to the long list already 

existing--we have denied him equal protection of the laws. 

B. SANDSTROM-TYPE INSTRUCTIONS 

Although the Sandstrom-type instruction issue has been 

previously litigated, McKenzie's contention in this appeal 

is that in the manner we have applied the harmless error 

rule to the instructions, we have denied him equal protection 

of the laws. He says we have chosen a standard of harmless 

error to apply to him that we have never applied to any other 

defendant. To that I must agree. Not only did the majority 

in McKenzie I11 adopt a harmless error test that should never 

be applied to instructions, but it is true that we have never 

applied that test to any other defendant. That, call it by 

whatever other name you like, is a denial of equal protection 

of the laws. 

Intent was an issue at the trial of this case. In 

Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 

61 L.Ed.2d 39, the United States Supreme Court held that 

an instruction stating that "a person is presumed to intend 

the consequences of his voluntary act" is unconstitutional 

because it shifts the burden to the defendant on an essential 

element of the crime--intent. The Supreme Court remanded 

Sandstrom to this Court to determine whether the unconstitutional 

instruction may have been harmless. We promptly ruled that 

the error was not harmless, and that Sandstrom was entitled 

to a new trial because we could not say beyond a reasonable 

doubt that the instruction had no effect on the jury's decision. 

State v. Sandstrom (1979), - Mont . - , 603 P.2d 244, 35 St. 

Rep. 744. 

-84- 
Although the United States Supreme Court decided the 

issue in Sandstrom, the issue had been raised by McKenzie 

at his trial in January 1975 and in all of his appeals since 

then. It just so happened that because of the procedural 

morass that the McKenzie case has been involved in, the 

United States Supreme Court first directly decided the 

constitutionality of the instruction Sandstrom. After the 

Sandstrom decision, the United States Supreme Court (even 

though McKenzie had raised many meritorious constitutional 

issues other than the Sandstrom instruction issue) remanded 

the McKenzie case back to this Court to determine whether the 

Sandstrom-type instructions given at the McKenzie trial were 

harmless error. 

Oddly enough, only one unconstitutional instruction was 

given in the Sandstrom case. But in the McKenzie case eight 

of these unconstitutional jury instructions were given to the 

jury. Notwithstanding this situation, this Court, in deciding 

McKenzie 111, held that the unconstitutional instructions 

were harmless error because of the overwhelming evidence of 

guilt. State v. McKenzie (1980), Mont . - , 608 P.2d 

at 457, cert.den. - U.S. , 101 S.Ct. 626, 66 L.Ed.2d 

507 (1980). In my dissent to McKenzie 111, I concluded that 

the eight unconstitutional instructions could not be harmless 

error. Intent was an issue in the case and McKenzie presented 

evidence that he did not have the required mental state to 

issue in the case, it cannot be stated beyond a reasonable 

doubt that eight unconstitutional instructions stacing 

that a person is presumed to intend the consequences of his 

voluntary act are harmless error. I further stated that 
the overwhelming evidence test for harmless error cannot 

legitimately apply to jury instructions which have been 

declared unconstitutional. And finally, I pointed out 

that on previous occasions, in assessing the impact of the 

unconstitutional Sandstrom-type instruction, we had never 

applied the overwhelming evidence test. 

After our decision in McKenzie 111, McKenzie then for 

the third time petitioned the United States Supreme Court for a 

writ of certiorari--raising many important constitutional 

issues that this Court erroneously decided. Without comment, 

a majority of the members of the United States Supreme Court 

denied his petition for certiorari, stating only that "[tlhe 

petition for a writ of certiorari is denied." But Justices 

Marshall and Brennan dissented. In an opinion stating why 

they would grant certiorari, they strongly criticized this 

Court for the way we had treated the McKenzie case. 449 

U.S. 1050, 1056, 101 S.Ct. 626, 630, 66 L.Ed.2d 507, 510. 

In particular, they were highly critical of the method by 

which this Court had decided the Sandstrom issue. 

In stating why certiorari should be granted on the 

Sandstrom issue, the dissent stated: 

". . . A state court's analysis of harmless 

error in a typical case may not present a 

question worthy of full review by this Court, 

yet, where, as here, the death penalty is the 

result, close scrutiny is required. Because 

I find the court's analysis of harmless error 

lacking of even-handed treatment, I dissent 

from this Court's denial of certiorari." 449 

U.S. at 1051. 

In describing the effect of this Court's use of this 

erroneous overwhelming evidence harmless error test as applied 

to unconstitutional jury instructions, the dissent stated: 

"The result [reached by the Montana Court] 

was perhaps inevitable once the state court 

selected the 'overwhelming evidence' of guilt 
standard to analyze whether the constitutional 

error was harmless. For whatever value that 

standard may have in reviewing a verdict following 

introduction of evidence in violation of constitutional guarantees, see, e.g., Milton v. 

Wainwright, 407 U.S. 371 (1972), use of the 

standard actually precludes effective review of 

the prejudicial impact of unconstitutional jury 

instructions. Where isolated, tainted evidence 

is at issue, the reviewing court may exclude that 

evidence from its assessment of whether the 

remaining evidence supports the conviction. But 

where the constitutional error occurred in the 

jury instructions, no isolated portion of the 

record can be eliminated from the judicial assessment. 

Nor can the effect of the instructions be evaluated 

by examining the evidence alone, and ignoring the 

unconstitutional instructions. For the precise 

issue in such cases is the manner in which the 

jury could have assessed the evidence as a whole, 

not the importance of any particular piece of 

evidence to sustain the verdict. In selecting 

the 'overwhelming evidence' standard on the theory 

that 'an appellate court should review the case 

as a whole in assessing harmless or prejudicial 

error, ' Mont. at , 608 P.2d at 458, the state 

court neglected to review the possible effect of the 

unconstitutional instructions on the jury's verdict." 

(Emphasis added.) 449 U.S. at 1054. 

The dissent then described how this Court had selectively 

treated the McKenzie case in applying the overwhelming 

evidence test to the unconstitutional Sandstrom-type instructions, 

and then summed up its criticism of this Court's majority 

opinion in McKenzie 111: 

"It appears that only in petitioner's case is 

the Montana court unwilling to apply this 

analysis. This seems to be yet another case 

in which a court sanctions 'egregious violations 

of the constitutional rights of criminal defendants 

by blandly reciting the formula 'harmless error.' 

Briggs v. Connecticut, 447 U.S. 912, 915 (1980), 

(MARSHAEL and BRENNAN, JJ., dissenting). However 

unpleasant the facts of this or other cases may 

be, the courts are obligated to protect the 

constitutional rights of the defendant. Due to 

concern that petitioner's rights have not been 

preserved, this Court has already remanded this 

case twice. I can understand the Court's reluctance 

to entertain this case yet again, for we presume 

that lower courts adhere to the purposes of remands 

from this Court. Yet the Montana court has failed 

to fulfill its obligation to carry out the mandate 

of our decisions. Therefore, I would grant certiorari 

and set the case for plenary consideration." 449 

U.S. at 1056-7. , 
The message of this dissent is crystal clear. This 

Court adopted an erroneous standard of harmless error in 

deciding the impact of the Sandstrom-type instructions. And 

this Court denied McKenzie equal protection of the laws by 

selecting him as the only recipient of the "overwhelming 

evidence" test as applied to unconstitutional instructions. 

It is in the light of how this Court applied the harmless 

error analysis to one unconstitutional instruction in other 

cases, and how this Court then applied the harmless error 

analysis to eight unconstitutional Sandstrom-type instructions 

in his case, that McKenzie now claims this Court has denied 

him equal protection of the law. 

McKenzie bases his equal protection argument on precisely 

what Justices Marshall and Brennan stated in their dissent. 

When McKenzie later filed his petition for post-conviction 

relief, he raised the equal protection argument, but the 

District Court totally failed to answer that argument, and 

now this Court has also failed to meet that issue. 

The assumption of the majority is simply that the 

United States Supreme Court, implicitly at least, approved 

of this Court's application, of the overwhelming evidence 

test to apply to unconstitutional instructions. Although 

the opinion mentions that "two United States Supreme Court 

justices disagreed in a dissenting opinion," the opinion 

fails to mention that the issue raised by Justices Marshall 

and Brennan in their dissent is precisely the issue now 

raised here by McKenzie. 

The majority would have the denial of certiorari to be 

a pronouncement on the merits. The majority states: 
". . . The position of this Court in McKenzie 

- I11 was not disturbed when the United States 

Supreme Court refused certiorari from the decision 

in McKenzie I11 (1980), 449 U.S. 1050, 101 S.Ct. 

626, 66 L.~d.2d 507. True, two United States 

Supreme Court justices disagreed in a dissenting 

opinion. Nonetheless the majority of the 

Supreme Court found no reason when certiorari was 

sought with respect to McKenzie I11 to disturb 

the reliance of this Court on Milton v. Wainwright 

(1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1, 

to the effect that the constitutional infirmity is 

excluded where overwhelming evidence supports the 

conviction." 38 St.Rep. at 1754. 

The majority position is wholly unsupported by the law. 

I have no idea why the United States Supreme Court denied 

the petition for certiorari. The petition raised many valid 

constitutional issues other than the Sandstrom-type instruction. 

The order denying certiorari states only that, "[tlhe petition 

for a writ of certiorari is denied." By this ruling, I 

cannot fathom how this Court can state that the United 

States Supreme Court has ruled favorably on our adoption of 

the "overwhelming evidence" test of harmless error to be 

applied to unconstitutional instructions. If it has, that 

Court has descended to a real low in constitutional interpretation, for it then has abandoned any meaningful test of 

harmless error. 

I am aware of no United States Supreme Court decision 

which holds that a denial of certiorari is an affirmative 

ruling on the merits in favor of resolving all issues the 

same way the lower court decided them. If this were so, a 

denial of certiorari would also have the effect of creating 

a res judicata defense to any petition brought in federal 

court for a writ of habeas corpus or other post-conviction 

relief. Furthermore, language of Supreme Court decisions 

indicates that a denial of certiorari is not a ruling on the 

merits. 

In 1950, in State v. Baltimore ~adio Show (1950), 338 

U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562, Justice Frankfurter 
stated that a denial of certiorari is not a determination 

on the merits. Whether he was truly speaking for the Court 

when he made this statement, I do not know. But if he was 

not, the United States Supreme Court has never, to my knowledge, 

made any pronouncements contrary to what was stated by 

Justice Frankfurter. And the general assumption is, based 

on Justice Frankfurter's statement, that a denial of 

certiorari is not a ruling on the merits. 

In the February 1971 issue of Judicature, The Journal 

of the American Judicature Society, Vol. 64, No. 7, page 

326, citing as authority Justice Frankfurter's statement in 

Stet- v. Baltimore Radio ,Show, speaks to the effect of 

a denial of certiorari by the United States Supreme Court: 

"The Court has consistently articulated one 

such self-imposed rule: That the Justices 

decide whether a case should be reviewed not 

on the basis of their agreement or disagreement 

with the outcome between the parties in the 

lower court, but on the basis of their assessment of the intrinsic importance of the issues 

in controversy. A denial of review, therefore, 

does not mean that the Court agrees with the 

outcome of the case in the lower court, and a 

denial carries no significance as a legal precedent. 

As Frankfurter explained: 'It simply means that 

fewer than four members of the Court deemed it 

desirable to review a decision of the lower court 

as a matter of "sound judicial discretion."'" 

(Emphasis added.) 

See also, Supreme Court Practice, Stern and Gressman 

(1978), pages 353-360, where the authors state that the 

denial of certiorari is not an affirmative statement that 

the lower appellate court was right. 

For my part, I am sure I will always remain mystified 

as to why, when the United States Supreme Court states no 

reasons for denial, a petition for certiorari was denied. 

In fact, more than any case in which I have been involved 

or have become aware of, I am totally mystified as to why, 

long ago, the United States Supreme Court did not grant full 
review to McKenzie on all the constitutional issues he 

has raised. Never have I seen a case, in all its aspects, 

so lacking in fundamental due process. 

C. FAILURE TO GIVE LESSER-INCLUDED OFFENSE INSTRUCTION 

ON -- THE CHARGEOFLIBERATE - HOMICIDE 

An issue in each of McKenzie's appeals is his claim 

that the trial court erred in refusing to give a lesserincluded offense instruction to the charge of deliberate 

homicide. Specifically, he alleged that psychiatric testimony 

was introduced which, if believed, would support a conviction 

of mitigated deliberate homicide rather than deliberate 

homicide. The psychiatrist testified that McKenzie was 

incapable of forming the requisite criminal intent or conforming 

his conduct to the requirements of the law. If the jury 

accepted his testimony, it could have found McKenzie guilty 

of the lesser-included offense. But the trial court refused 

to give the instruction offered by McKenzie's counsel. The 

majority, for totally unfounded reasons, decided against him 

on this issue in McKenzie - I, 557 P.2d at 1043; McKenzie -- 11, 

581 P.2d at 1224; and McKenzie 111, 608 P.2d at 446. Although 

I did not dissent on this issue in any previous decision because 

I concentrated on other issues and I did not have the time to 

sufficiently study all claimed errors, I have now studied 

this issue and am convinced that McKenzie is right. 

In his petition for post-conviction relief, McKenzie 

alleged not only that the trial court and this Court had 

already erred in not recognizing that a lesser-included 

offense instruction should have been given, McKenzie also 

alleged that this Court, in holding against him, deprived him 

of equal protection of the law. He alleges, and with good 

cause, that we have set McKenzie up as the lone defendant who 
would not be entitled to such an instruction under the 

factual issue presented to the jury. He alleges we have 

set.up special rules to apply to him in order to uphold 

the conviction. McKenzie is right. 

It has long been the law of this state, and I am sure 

it is the law of most states, that a defendant charged with a 

crime is entitled to an instruction on any theory of defense 

as long as there is support in the evidence for his theory. 

This same law applies to a defendant's right to a lesserincluded offense instructions. For example, see State v. 

Bouslaugh (1978), 176 Mont. 78, 576 P.2d 261, State v. Buckley 

(1976), 171 Mont. 238, 557 P.2d 283; and Keeble v. U.S. (1973), 

412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844. 

McKenzie presented evidence through a psychiatrist that 

McKenzie was incapable of forming the intent necessary to 

commit the crimes charged. Based on this testimony he was 

certainly entitled to a lesser-included offense instruction. 

Unfortunately, the majority, in each of the decisions 

on this issue, never mentioned the evidence existing in 

support of a lesser-included offense instruction. The majority's 

decision, in stating that no such evidence existed to justify 

a lesser-included offense instruction, ignores the testimony 

of the psychiatrist who testified for McKenzie. In effect, 

the majority became the finder of fact, rather than the jury. 

See McKenzie - I, 557 P.2d at 1043; McKenzie - 11, 581 P.2d at 

1224; McKenzie 111, 608 P.2d at 446. The jury was entitled 

to believe the psychiatrist if it chose to do so, but it 

was prevented from even considering a lesser-included offense 

because of the trial court's failure to give appropriate 

instructions. 

In taking the position that the evidence justified 

the giving of a lesser-included offense instruction, I am 
fully aware that my conclusion that the jury convicted 

McKenzie of deliberate homicide by means of torture--a 

nonexistent offense--may appear to be inconsistent. Obviously, 

a lesser-included offense instruction could be given only in 

relation to the deliberate homicide charge, that is, the 

jury would be instructed that it could convict McKenzie of 

the lesser-included offense of mitigated deliberate homicide 

(section 94-5-103, R.C.M. 1947). The deliberate homicide by 

means of torture offense, however, being a creation of the 

trial judge, has no lesser-included offense for the jury to 

refer to. I emphasize this fact only to show how horribly 

wrong the jury instructions are in this case--they are an 

absolute nightmare. 
VII. McKENZIE WAS DENIED A FAIR TRIAL 

McKenzie raised many issues relating to the conduct of 

the trial and the instructions given to the jury. He argues 

that if none of the errors are sufficient themselves to 

grant a new trial, the doctrine of cumulative error certainly 

requires that there be a new trial. I have no doubt that 

McKenzie should have been given a new trial even without the 

benefit of the cumulative error doctrine. On the other 

hand, if ever there was a case in which to apply the doctrine 

of cumulative error in granting a new trial, this is it-- 

this case is full of error. 

A. INFLAMMATORY AND GRUESOME PICTURES 

The trial court permitted the State to introduce the 

most gruesome and inflammatory pictures that can be conceived. McKenzie contends that the pictures were not needed 

to establish any fact, and that in any event, they were so 

inflammatory and prejudicial they outweighed any possible 

probative value they may have had. I agree. In McKenzie - I, 

171 Mont. at 320, 557 P.2d at 1046, (I was not then a 

member of this Court), Judge Boyd, sitting for Justice 

Castles, dissented on this issue and concluded that this 

evidentiary error by itself entitled McKenzie to a new 

trial. Judge Boyd stressed that the pathologist testified 

he did not need the pictures to explain his opinion on any 

matter on which he testified, including the cause of death. 

Nonetheless, the trial court admitted the pictures, 

despite the fact that it and the prosecutor had agreed that 

the pictures were gruesome and inflammatory, and despite the 

fact that the trial court had previously instructed the 

prosecutor not to offer the pictures if the pathologist did 

not need them to explain his testimony. 
Before the pictures were marked in front of the jury 

and offered as evidence, defense counsel moved in chambers 

to exclude the pictures. The trial court agreed that the 

colored picture of the victim's body at the place it was 

found was "gruesome" and "inflammatory." (Tr. at 519.) The 

prosecutors also admitted that the pictures were gruesome. 

(Tr. at 510-511.) The trial court specifically directed the 

prosecutors to ask the pathologist if he needed the pictures 

to explain his testimony. The court concluded by stating: 

"If he doesn't need it, don't offer it." (Tr. at 520.) 

The pathologist, being questioned by defense counsel on 

preliminary examination, stated in no uncertain terms that 

he did not need the pictures to explain his testimony. 

Notwithstanding this testimony and the directive of the 

trial court, the prosecutor nonetheless offered the gruesome 

pictures into evidence despite the defense counsel's objections, 

and the trial court admitted them. 

The State made absolutely no showing that the pictures 

were probative or that the prejudice inherent in showing 

these pictures to the jury far outweighed any possible 

probative value. I agree with Judge Boyd, especially because 

this is a death penalty case, that the pictures were so 

inflammatory that a new trial is required. 

B. ERRORS IN INSTRUCTIONS DEMAND A NEW TRIAL 

The trial court, in an unusual action, gave many preliminary instructions to the jury before testimony started. 

McKenzie argues that it was improper in any case to give 

preliminary instructions, but more importantly, that these 

preliminary instructions were gross misstatements of the 

law. He also contends that many of the instructions given 

to the jury at the conclusion of the trial were also gross 

misstatements of the law, and that many were unconstitutional. 
In a proper case I see no harm, and perhaps even good, 

in giving some preliminary instructions to the jury, particularly instructions relating to the evaluation of testimony 

and evidence. But here the instructions went far beyond 

this purpose. In fact they were so bad that the prosecutors, 

as well as defense counsel, objected to them. 

On January 3, 1975, the prosecutors filed general 

written objections which can be summarized as follows: 

"The instructions are misleading and would tend 

to deny defendant his right to a fair trial. 

"The instructions place undue emphasis on 

presumptions and inference and therefore 

would detract the jury from properly listening 

to testimony and observing the exhibits admitted 

into evidence (these presumptions were later 

declared unconstitutional by the United States 

Supreme Court in Sandstrom v. Montana (1979), 

442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed. 39). 

"The instructions are redundant and confusing 

to the jury, as well as being misstatements of 

the law. 

"The instructions fail to disclose the trial court's 

source for this instruction. 

In addition, there were further specific objections 

to the instructions which can be summarized as follows: 

"There is no statutory authority for reading to 

the jury the Counts in the Information as part of 

the statement of the case. 

"The title on the charge denominated as 'Deliberate 

Homicide By Means of Torture" incorrectly stated 

the crime charged (deliberate homicide), and 

that the considerations of torture arises only 

under a punishment statute, and that this title 

is misleading. 

"The charge denominated as 'Deliberate Homicide 

- 

By Means of Lying --- in Wait or Ambush' incorrectly 

stated thecrime charged and that the consideration 

of whether the defendant was lying in wait or 

ambush arises only under a punishment statute, 

and that the use of this title is misleading." 

The State's written objections contained many more than 

those I have summarized, but what I have set forth sufficiently 

illustrates that the State had serious, meritorious objections 
to the instructions given. Notwithstanding the State's and 

McKenzie's objections, the trial court proceeded to give 29 

preliminary instructions, including definitions for its two 

newly-created capital offenses: deliberate homicide by means 

of torture and deliberate homicide by means of lying in wait 

or ambush. The majority's analysis of the issues raised 

concerning the preliminary instructions omits even a reference 

to the new capital crimes created by the trial court: 

"Defendant contends the extensive preliminary 

instructions given by the court were erroneous, 

that it was error to give them prior to the 

introduction of evidence, and that the remaining 

instructions given after the presentation of 

evidence were wrong. 

"The preliminary instructions were the usual 

instructions given on the role of the jury. In 

addition, included were -- a nurhber of instructions 

which --- set out the elements of -- thevarious crimes 

- of which defendant was accused, --- 

and set out 

statutory definitions of - terms used. 

"Montana's criminal code is written in clear 

plain language which serves well as the basis 

for instructions to the jury." (Emphasis added.) 

608 P.2d at 444. 

Had the majority properly studied the issues raised and 

the instructions given, it would have realized that several 

instructions were not only misstatements of the law, but 

that the instructions defined two deliberate homicide charges 

not defined as substantive offenses by Montana law--deliberate 

homicide by means of torture and deliberate homicide by 

means of lying in wait or ambush. Furthermore, had the 

majority bothered to read its own earlier case of State ex 

rel. McKenzie v. District Court, supra, it would have 

realized that the trial court instructed the jury precisely 

in the manner in which it was told not to do. The trial court 

instructed on deliberate homicide by means of torture and 

deliberate homicide by means of lying in wait or ambush even 

though this Court stated in State ex rel. McKenzie v. District 

Court of Ninth J.D.: 
"It is neither appropriate nor necessary to 

base separate counts on torture or lying in 

wait . . . Section 94-5-105, Criminal Code 

of 1973, deals with sentencing and does not 

define a specific crime." 525 P.2d at 1217. 

And this Court further stated that references to the penalty 

provisions of the Code are "unnecessary, redundant and 

inflammatory." 525 P.2d at 1218. 

In facing these clearly erroneous instructions, this 

Court had three choices: First, this Court could have 

refused to recognize the issues raised and therefore leave 

them undecided, but create the appearance that they had 

been decided. Second, this Court could have recognized 

the issue and then engaged in an extensive analysis of 

whether the instructions, although clearly erroneous, were 

harmless error. Third, this Court could have done what it 

should have done and granted a new trial because of the 

instructions defining nonexistent capital crimes. Sadly, 

this Court made the first choice and avoided the issue. 

Add to this the fact that eight of the instructions 

were, in one fashion or another, carbon copies of the 

instructions held unconstitutional by the United States 

in Sandstrom v. Montana, supra. And aside from this, the 

instructions as a whole are beyond any doubt the most 

confusing and inconsistent set of instructions I have ever 

seen. 

Errors in instructions alone require that McKenzie 

have a new trial. 

C. VII. THE TRIAL COURT ERRED IN REFUSING DEFENSE 

COUNSEL THE RIGHT TO VOIR DIRE THE JURY ON THE ISSUE OF 

MENTAL DISEASE OR DEFECT 

The trial court was unjustified in refusing defense 

counsel the right to question prospective jurors concerning 

their attitudes on the defense of mental disease or defect. 
Defense counsel did not refuse to give notice of this intent 

merely out of obstinacy; but refused to do so in order to 

preserve the issue for appeal. He had already challenged 

the constitutionality of the statute requiring that he give 

such notice, and the trial court had already ruled against 

him. He did not later give a formal, written notice because 

he wanted to, and in fact, did present the issue to this 

Court in an appeal. Because McKenzie dared to challenge the 

constitutionality of the statute, he was denied the basic 

right to question prospective jurors on the basic issue of 

the trial. The trial court's ruling can be viewed only as 

the punishment for challenging the constitutionality of the 

statute requiring that a defendant give such notice. I 

cannot imagine any ruling more prejudicial to a defendant at 

that stage of the trial. The fact that this is a capital 

case only adds to the error and prejudice. 

The majority ruling upholding the trial court's decision 

ignores the facts. At no time did the State assert it was 

surprised by defense counsel's request to question jurors on 

their attitudes toward the defense of mental disease or 

defect; the record shows that virtually from the inception 

of his case, the State and trial court knew that McKenzie 

would be asserting this defense. In fact, several issues 

raised and decided in McKenzie's appeals directly relate to 

the issue of mental disease or defect. 

First, McKenzie claimed that the State cannot constitutionally require him to give notice that he will rely 

on the defense of mental disease or defect, but the majority 

held against him. 608 P.2d at 440-441. This issue alone 

should have foreclosed the majority from relying on the trial 

court's ruling that this voir dire was not allowed due to 
McKenzie's refusal to give notice. Second, McKenzie 

claimed that the trial court erred in refusing defense 

counsel's request that a psychiatrist be permitted to sit 

with and aid defense counsel while the State's psychiatrists 

were testifying, but the majority decided against him. 608 

P.2d at 440. Third, McKenzie claimed that the trial court, 

by making his alleged diminished capacity an affirmative 

defense, shifted the burden to McKenzie to disprove an essential 

element of the offenses charged. On this issue, the United 

States Supreme Court vacated the judgment of this Court and 

remanded for a determination of whether the procedures and 

burdens of proof violated the principles of Patterson v. New 

York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. 

The majority again held against McKenzie. 608 P.2d at 452- 

456. And fourth, McKenzie claimed that the trial court erred 

by refusing certain instructions he offered relating to mental 

disease or defect, and the majority again held against him. 

608 P.2d at 440. 

The situation at trial then, is that the State and the 

trial court were fully aware that McKenzie would rely on the 

defense of mental disease or defect, even though he had not 

given - formal, written notice. And they were fully aware that 

McKenzie would rely on the defense of diminished capacity 

by contending he could not have formed the intent to commit 

the crimes charged. McKenzie did, in one form or another, 

rely on both these defenses. Surely, the trial court knew 

it would be error to refuse McKenzie the right to present 

evidence on these issues, yet it refused McKenzie's counsel 

the right to question prospective jurors concerning their 

attitudes to these defenses. Jurors could have sat on this 

case with a fixed belief that mental disease or defect is 
an illusory and much used technical defense designed only 

to protect the guilty. I would presume prejudice in any 

case where such a fundamental right is denied, and because 

this is a capital case, I would consider the prejudice to 

be conclusive. Therefore, I would reverse and grant a new 

trial. 

D. THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION 

ON THE FIRST DAY OF TRIAL TO ADD 58 MORE WITNESSES 

In my dissent, I have explained the background of the 

plea bargain issue (Part 111), after suddenly realizing the 

weaknesses that defense counsel exposed in the State's case, 

the State knew it had to add 58 more witnesses. In any major 

case, it must be presumed prejudicial where defense counsel 

is suddenly confronted with the need to prepare for the 

testimony of 58 more witnesses, but certainly, a presumption 

of prejudice must attach in a death penalty case. 

Nonetheless, the majority rationalizes its holding by 

a four-part analysis: First, there was no plea bargain and 

therefore McKenzie was not justified in relying on a plea 

bargain; second, through discovery and its own investigation 

and preparation, the State knew that it had to add the 

additional witnesses; third, in any event, not all of the 

witnesses testified and the prejudice was thereby minimized; 

and fourth, defense counsel waived any right to complain by 

not requesting a continuance in order to better prepare for 

all of these witnesses. 

I have no doubt that a plea bargain existed, and so 

I must disagree with the first reason. Clearly, the defendant 

relied on the plea bargain in disclosing his own strategy 

and in revealing the weaknesses in the State's case. As to 

the second rationalization, there is not a scrap of evidence 
in the record indicating that the State had obtained 

discovery from the defendant, and there is no evidence 

in the record that the State had independently determined 

that it had to add 58 more witnesses--on the first morning 

of trial. I also find it difficult to believe that if the 

State knew beforehand of the need to add 58 more witnesses, 

it would have waited until the start of trial before moving 

to do so. In fact, if this were the case, due to the State's 

lack of diligence, the trial court should have denied the 

motion. 

The majority's third rationalization that not all of 

the 58 witnesses testified, although true, ignores the impact 

on defense counsel of suddenly having to prepare for the 

testimony of 58 more witnesses. The addition of 58 witnesses 

certainly must have had an impact on defense counsel's trial 

strategy, and certainly must have meant long hours of preparation for the testimony of these witnesses, even though they 

may not actually have testified. Adding these witnesses on 

the first day of trial undoubtedly impaired the defense 

counsel's ability to conduct a proper defense. 

And while it is true that defense counsel did not ask 

for a continuance even though it could have done so, a 

request for a continuance would have been meaningless. 

The trial court, by this time, had amply demonstrated 

prejudice against McKenzie and his counsel, and undoubtedly 

would have denied a motion for a continuance. Assuming 

furthermore, that defense counsel had moved for a continuance, 

and that it had been denied, the sad record of this Court 

in conducting fair review in this case convinces me that 

the majority of this Court would have held nonetheless that 

McKenzie was neither prejudiced by the addition of the 58 

more witnesses nor by the trial court's refusal to grant a 

continuance. 
Nor does an order granting defense counsel the right 

to interview a witness immediately before that witness 

testifies cure any prejudice arising because of the eleventh 

hour addition of witnesses to the trial witness list. An 

interview conducted under the hectic circumstances of a 

trial already in progress does not give defense counsel 

sufficient time to prepare for either direct examination or 

cross-examination of the witnesses. 

The majority again has been caught up in one of its 

many inconsistencies. If, as the majority states, the State 

knew from its investigation and preparation of the need to 

add 58 witnesses, then the State was in bad faith waiting 

until the first day of trial to request to add them to the 

list of trial witnesses and the trial court should have denied 

the State's motion. On the other hand it was defense counsel 

who, in relying on the plea bargain agreement, apprised the 

State of the weaknesses in its case necessitating the addition 

of witnesses, this situation supports a finding that McKenzie 

detrimentally relied on the plea bargain and had a justifiable 

expectation that it would be enforced. 

I am convinced that a plea bargain existed and that 

the need to add most or all these witnesses was disclosed to 

the State by defense counsel in reliance on a plea bargain 

agreement. The errors in this case are only compounded where 

the State can breach a plea bargain agreement and then obtain 

the added benefit of bolstering its case for trial based on 

the disclosures of defense counsel who acted in reliance that 

plea bargain agreement. 

For these reasons, it was reversible error for the 

trial court to permit addition of 58 more witnesses on the 

first day of trial. 
E. THE TRIAL COURT ERRED BY REFUSING TO ALLOW A 

PSYCHIATRIST TO SIT WITH DEFENSE COUNSEL WHILE THE STATE'S 

MEDICAL EXPERTS WERE GIVING THEIR TESTIMONY 

In holding that the trial court properly denied defense 

counsel's request that a psychiatrist be allowed to sit at 

counsel table while the State's medical experts were testifying 

(608 P.2d at 447), the majority has omitted an important fact. 

One of the reasons that defense counsel made this request 

was because one of the State's psychiatrists had a pronounced 

Cuban-Spanish accent which made it exceedingly difficult to 

understand him. He was the key psychiatric witness for 

the State. For this reason, defense counsel thought it 

imperative to have the aid of a psychiatrist when this witness 

testified. 

McKenzie's defense rested on mental disease or defect 

or diminished capacity, that is, whether he had the capacity 

to form the intent required to commit the crimes charged. 

Obviously, it was vital that defense counsel understand the 

nature of the examinations conducted by the State's psychiatrists 

and the opinions given by these psychiatrists. Although in 

a normal case this might not be error, the error is manifest 

where, as here, the defendant is on trial for his life. 

The trial court's ruling also was unfair because it 

did not confine the rule of exclusion of witnesses to rebuttal 

witnesses. The defendant was compe?lled to go first by putting 

on its expert testimony relating to McKenzie's mental 

condition. Because the State's psychiatrists were rebuttal 

witnesses, the trial court's ruling did not prevent them from 

listening to the testimony of McKenzie's expert witnesses. 

And even if they did not do so, the State surely had the 

means to convey the essence of this testimony to the State's 

experts before they were called to testify. 
Under the circumstances, I would hold it was error 

to refuse defense counsel's request. Especially since his 

client was on trial for his life, the req~stwas areasonable 

one and should have been granted. 

F. THE CUMULATIVE ERROR DOCTRINE HAS NO BASIS FOR 

EXISTENCE IF IT IS NOT INVOKED IN THIS CASE TO REVERSE THE 

CONVICTIONS 

Throughout this dissent and my last two dissents, I 

demonstrated that McKenzie's trials were riddled with error, 

not merely technical error, but error affecting his substantial rights. I need not again detail that error in 

concluding that the cumulative error doctrine has no basis 

for existence if it is not invoked here to reverse the 

convictions. The majority could reach a contrary conclusion 

only by closing their eyes to the errors committed and 

apparently, that is what they have chosen to do. 
VIII. UNANIMOUS VERDICT REQUIREMENT 

McKenzie claims that the jury's failure to disclose the 

basis of its verdict, since the case was based on multiple 

and alternative theories of criminal responsibility, denied 

him of the unanimous jury verdict as guaranteed by the 

United States and Montana Constitutions. The majority has 

concluded that this right was not violated under the Montana 

Constitution and that there is no such right under the 

United States Constitution. I believe, however, that McKenzie 

was denied this fundamental right under both constitutions. 

I fully recognize that the United States Constitution does 

not guarantee a unanimous verdict in a state criminal 

prosecution, but because this is a death penalty case I 

believe the United States Supreme Court would impose such a 

requirement in all state criminal prosecutions--it is the 

only way of assuring the necessary certainty before a death 

penalty can be imposed and upheld. 

Because I do not believe that this Court can state 

beyond a reasonable doubt that the jury reached a unanimous 

verdict on any one or more the alternative theories of 

criminal responsibility, under the harmless error rule set 

forth in Chapman v. California, supra, the convictions must 

be reversed. 

I first raised the possibility of a non-unanimous jury 

verdict when I dissented to McKenzie I11 on the issue of the 

unconstitutional Sandstrom-type instructions. See 608 P.2d 

at 463, 474 and 482. Similar unanimous jury verdict issues 

were raised in both Coleman - I11 and Fitzpatrick 111, 

and I filed dissents in both cases, concluding that they 

were denied a unanimous jury verdict. The basis for my 
conclusions is equally applicable here and therefore I 

shall not repeat that reasoning nor case analysis here. 

It is sufficient to say that the majority here has not 

fairly distinguished United States v. Gipson (5th Cir. 

1977), 553 F.2d 453, or State v. Green (Wash. 1980), 616 

P.2d 628. Further, the majority apparently has now abandoned 

any reliance on our own case of State v. Souhrada (1949), 

122 Mont. 377, 204 P.2d 792. See Fitzpatrick 111, 38 St.Rep. 

1465D-65M. 

A. THE HOMICIDE CONVICTION--UNANIMOUS VERDICT REQUIREMENT 

Because I have concluded that the jury convicted 

McKenzie of deliberate homicide by means of torture--a 

nonexistent offense, my analysis of the unanimous jury verdict 

requirement must first take this conviction into account. 

Assuming that the jury convicted McKenzie of this offense, 

the conviction must nonetheless be reversed, even if the jury 

was unanimous. Obviously, a conviction for a crime that 

does not exist cannot be affirmed, regardless of whether the 

jury was unanimous in reaching its verdict. 

On the other hand, if it can be concluded that the jury 

did not convict McKenzie of deliberate homicide by means of 

torture, but rather, of deliberate homicide, then a unanimous 

verdict problem is triggered. McKenzie was accused under 

section 94-5-102(a), R.C.M. 1947, of "purposely or knowingly" 

causing the death of Lana Harding, but he was also charged 

in the alternative under subsection 94-5-102 !b), K.C.11. 1947, 

with causing the death of Lana Harding while committing, 

engaging in, or withdrawing from the commission of either 

sexual intercourse without consent or aggravated assault. 

The problem is that the jury verdict fails to reveal under 

which subsection of that statute it convicted McKenzie. 
Furthermore, if the jury applied subsection (b), which 

felony did the jury find he was committing? 

The underlying certainty required for any conviction 

that may result in a death penalty requires that the 

sentencing authority know precisely which theory the jury 

used in reaching its verdict. But here that is impossible. 

Neither the sentencing judge, or the judge who presided 

over the petition for post-conviction relief, or this Court, 

can determine from the record which theory of homicide the 

jury convicted on. The jury was not instructed that if it 

applied subsection (a) or that if it applied subsection (b) 

(and one or more of its subtheories) it must be unanimous in 

doing so. All doubts as to unanimity must be resolved in 

favor of the accused. Beck, supra; Andres, supra. The 

doubt here was created by the State due to the manner in 

which it charged McKenzie, and it was also caused by the 

trial court due to the manner in which it instructed the 

jury. McKenzie's counsel offered jury instructions and 

verdict forms which were more explicit, but the trial judge 

insisted on giving the jury the ones he had prepared. The 

verdict (assuming again that the jury did not convict 

McKenzie of deliberate homicide by means of torture) must 

be reversed under the harmless error test of Chapman v. 

California, supra. 

One effect of the jury's failure to specify the basis 

for its verdict is that the death penalty cannot be imposed. 

~ot only a13. doubts as to unanimity, but all doubts 

affecting the substantial rights of the accused in a death 

Sjuor 0-F penalty case, must be resolved the accused. It 

must be assumed therefore that the jury applied the felonymurder rule in finding McKenzie guilty. Such a finding 

does not carry with it a finding that McKenzie had the 
purpose to kill the victim. Such a finding is necessary 

to the imposition of the death penalty. Lockett, supra. 

~ccordingly, the death penalty cannot be imposed because 

of the absence of an essential jury finding. 

B. THE AGGRAVATED KIDNAPPING CONVICTION--UNANIMOUS 

VERDICT REQUIREMENT 

McKenzie was also charged with multiple, alternative 

theories of criminal responsibility on the aggravated 

kidnapping charge. The instructions given and the verdict 

form which the jury was required to use do not reveal, 

however, the basis it used to determine which theory it 

applied in reaching its guilty verdict. The jury was 

provided with only one guilty verdict form and one not 

guilty verdict form. The guilty verdict form provided 

that the jury make two findings: first, was ~cKenzie guilty 

of the crime of aggravated kidnapping (in essence a general 

verdict) and, second, did the aggravated kidnapping result 

in the victim's death. The jury was instructed only that 

its verdict and findings must be unanimous. 

It can be assumed that the jury was unanimous. The 

jury was instructed that its findings must be unanimous 

and there is no basis in the record to determine otherwise. 

However, the validity of this finding rests in turn on the 

validity of the underlying aggravated kidnapping conviction. 

There is absolutely no basis in the record to determine 

which theory or theories the jury applied in convicting 

McKenzie of aggravated kidnapping, nor is there any basis 

in the record to determine whether the jury was unanimous 

on one or more of the theories it applied in finding McKenzie 

guilty. 

McKenzie was charged with two counts of aggravated 

kidnapping, and each of these had two subcounts of criminal 
responsibility. It is clear, therefore, that the jury 

could have split in two or more ways on the theories of 

criminal responsibility it applied. 

For example, in Count 3, McKenzie was charged with 

kidnapping for the specific purpose of committing sexual 

intercourse without consent or for the specific purpose 

of committing aggravated assault. He was also separately 

charged with the distinct crimes of sexual intercourse 

without consent and with aggravated assault. However, the 

trial court also instructed the jury that if it convicted 

McKenzie of aggravated kidnapping, the jury did not have to 

reach a verdict on whether he was guilty of sexual intercourse 

without consent or guilty of aggravated assault. The jury 

was instructed that these were included offenses. Because, 

however, the jury did not reach verdicts on these separate 

charges, it can only be speculated whether the jury applied 

either the first or second theory of Count 3 in reaching 

its guilty verdict. And it is equally speculative as to 

whether the jury was unanimous on one or both the alternative 

charges contained in Count 3. 

The same situation exists with relation to the 

aggravated kidnapping charge contained in Count 4. Under 

the third theory the jury was required to find that McKenzie 

knowingly or purposely restricted or secreted the victim 

for the specific purpose -- of inflicting bodily --- harm or of 

terrorizing her. Under the fourth theory, the jury was 

required to find that McKenzie knowingly or purposely used 

or threatened the use of physical force on the victim for 

the specific purpose - of inflicting bodily injury -- or for 

terrorizing her. Again, the record is silent on whether the 

jury applied the third or fourth theories in Count 4, or 

whether it applied both in finding McKenzie guilty of 
aggravated kidnapping. Nor can it be determined as to 

whether the jury was unanimous in applying one or both 

the alternative charges contained in Count 4. 

The net result is that nobody can tell whether the 

jury found McKenzie guilty by applying the first or second 

theory in Count 3, or the first or second theory in 

Count 4. Nor can it be determined if the jury was unanimous 

on any one theory it may have applied in reaching its verdict. 

Where the overriding effect results in the death penalty, 

this is not an acceptable result--the certainty required in 

death penalty cases by the United States Supreme Court 

requires more than this. See -- Beck, supra; and Andres, supra. 

I next discuss the substantial evidence question as 

it relates to the multiple alternative charges on which 

the jury was to base its verdict. I state from the outset 

that I have not reviewed the record--because the record was 

not before this Court for review. 

C. THE SUBSTANTIAL EVIDENCE QUESTION 

An assumption commonly made by appellate courts is 

that it does not matter which theory the jury used as a 

basis to convict as long as it can be determined from the 

record that substantial evidence existed on each of the 

theories presented to the jury. The unstated basis for 

these decisions seems to be that a defendant should not 

worry whether the jury unanimously agreed in fact upon a 

single theory of criminal responsibility as long as the 

jury unanimously agreed that the defendant was guilty of 

the general crime. That is the approach taken by the 

majority of this Court in Coleman 111, and - Fitzpatrick 111, 

to which I dissented. 
In one broad statement, the majority has, without 

indicating what the theories are or what the evidence is, 

stated that substantial evidence supports each of the 

theories charged for each of the crimes charged. The court 

disposes of the issue by stating: 

". . . These verdicts and findings are not 

within the ambit of United States v. Gipson 

(5th Cir. 1977), 553 F.2d 453, or State v. 

Green (1980), 94 Wash.2d 216, 616 P.2d 628, 

for the reason that in this case, as distinguished 

from the cases on which petitioner relies, - the 

evidence is sufficient -- hereto support -- the jury 

verdict under - any - and -- all possibilities under the 

instructions. ---- It is idle to speculate -- in this 

case, under the instructions -- of the court -- and the 

overwhelming evidence, that there -- is any 

possibility -- that the verdicts -- or the findings in 

----- this case were less than unanimous." 38 St.~eg 

at 1756. 

I admit that I have not reviewed the trial record 

to determine whether substantial evidence exists for each 

of the alternatively charged theories of aggravated kidnapping 

and for each of the alternatively charged theories of 

homicide. When McKenzie's appeal of the denial of postconviction relief was heard and decided, we did not have 

before us the transcripts of the trial record. The reason 

is that a petition for post-conviction relief is an entirely 

new proceeding and therefore only the transcript pertaining 

to that proceeding for post-conviction relief was sent to 

this Court. Neither the District Court nor the counsel 

for either side thought to have the trial transcripts sent 

to this Court. 

A transcript of the trial does exist, however, in the 

State Historical Society's archives. But I have no knowledge 

that any member of this Court in preparation for the writing 

of this opinion went to the Historical Society to comb the 

trial transcript in an effort to determine whether there is 

substantial evidence to support all the theories charged. 
Because this Court did not have a transcript during 

the consideration of McKenzie - IV, I am reasonably confid~nt 

that the record was not specifically reviewed to determihe 

whether each of the theories of criminal responsibility was 

supported by substantial evidence. A death penalty case 

deserves better appellate review than this. 
IX. DEATH PENALTY ISSUES 

A. UNCONSTITUTIONALITY OF STATUTORY DEATH PENALTY 

SCHErn 

When McKenzie was charged, convicted, and sentenced, 

only two statutes were in effect which had a direct bearing 

on the death penalty--sections 94-5-105 and -304, R.C.M. 

1947, enacted in 1973. There were no statutes setting forth 

what were considered to be either aggravating factors or 

mitigating factors. There were no statutes which provided 

for mandatory, expedited review of a death penalty sentence. 

In fact, there were no statutes which expressly provided for 

any kind of review of a death sentence. Needless to say, 

then, neither were there any statutes which provided the 

method by which proportional review was to be conducted by 

the state's highest appellate court. 

As I stated in my dissent to McKenzie - 11, 581 P.2d at 

1266 to 1277, I read the following cases to require that these 

statutory procedures be followed before a death penalty 

scheme can be declared constitutional on its face. Gregg v. 

Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; 

Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 

L.Ed.2d 913; Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 

2950, 49 L.Ed.2d 929; and Furman v. Georgia (1972), 408 U.S. 

238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Because Montana did not 

have these statutory procedural protections, I concluded 

that the statutory scheme for imposition of the death penalty 

in this state was unconstitutional. 

Despite these defects in the Montana statutory scheme, 

the majority in McKenzie - I, - 11, and - 111, consistently refused 

to give effect to the mandates of the United States Supreme 

Court. By the strangest logic and by the most tortured 

statutory interpretation, the majority has papered-over several 
non-death penalty statutory schemes, and out of them 

created by judicial fiat, a new statutory scheme for 

capital crimes. In this appeal, the majority has avoided 

reviewing what the sentencing court did, and what the 

majority did in McKenzie - I, - 11, and - 111, by invoking the 

special McKenzie post-conviction relief rule that the issues 

have already been decided. 

The opinion simply states: "[tlhe constitutionality of 

the statute has been fully considered and decided by us." 

38 St.Rep. at 1758. The constitutionality of the statutes has 

certainly been decided, but the constitutionality of the 

statute has never been fully considered. 

In McKenzie - I1 (I was not a member of this Court when 

McKenzie - I was decided), I dissented to the majority's 

gymnastics in making McKenzie subject to a hanging edict. 

See 581 P.2d 1266 to 1277. I adhere to those views today. 

I summarize here my dissent in McKenzie - 11, and also 

comment here on the effect of an order handed down by this 

Court in the Coleman case, declaring that sentence review 

before the Sentence Review Board was never contemplated by 

the sentence review statutes. 

The majority holding in McKenzie - I, - 11, and - 111, that 

McKenzie could avail himself of the sentence review statutes 

and ask the Sentence Review Board to review his death sentence, 

is a papered-over attempt to save an obviously unconstitutional 

review system. (I will have more to say in partIX of this 

dissent on just what transpired at the hearing before the 

Sentence Review Board.) I quoted and analyzed the sentence 

review statutes in McKenzie - I, and concluded that they were 

never intended to apply to a defendant seeking review of a 

death sentence. The sentence review scheme is devoid of 
language indicating that a death penalty defendant can 

obtain review of that sentence before the Sentence Review 

Board. In fact, the statutes do not even refer to the 

death penalty or to a death sentence, and it is manifest that 

the legislature did not contemplate that the Sentence Review 

Board would be reviewing death sentences. (See my dissent 

in McKenzie - 11, 581 P.2d at 1273.) 

Assuming, furthermore, that the Sentence Review Board 

had the statutory authority to review and therefore to change 

a death sentence to one less than death, the statutory scheme 

is still constitutionally deficient because this Court is 

not permitted to review a decision of the Sentence Review 

Board. The United States Supreme Court held in Gregg, Proffitt, 

and Jurek, supra, that a death sentence must be reviewed by 

the state's highest appellate court. The Sentence Review Board 

is not even an appellate court much less the state's highest 

appellate court. 

The majority opinion in McKenzie I11 states that the 

Sentence Review Board is a branch of this Court. That is 

not true at all. We did not create the Sentence Review Board, 

it was created by the legislature, and just as it was created 

by the legislature so can it be abolished by the legislature. 

On the other hand, this Court is one of the three branches 

of government established by the Montana Constitution and, 

at tj-mes I am sure it would like to do so, the legislature 

cannot. abolish this Court as it can abolish the Sentence 

Review Board. 

I engage in this analysis only to demonstrate the 

undeniable fact that the Sentence Review Board is not the 

highest appellate court in this state, that its actions are 
not reviewable by this Court, and, therefore, that the 

statutory scheme created by the majority opinion solely to 

uphold the constitutionality of the sentencing court's death 

edict cannot possibly comply with the United States Supreme 

Court mandate that the state's highest appellate court must 

finally pass on the proportionality of the sentence. 

I further note that this Court finally was caught in the 

web of its own logic when it was asked to determine whether 

Coleman was aLso entitled to have his death sentence reviewed 

by the Sentence Review Board. After this Court affirmed in 

Coleman - 11, 605 P.2d 1000, Coleman, relying on the majority 

decision in McKenzie - I, - 11, and - I11 that McKenzie could have 

his death sentence reviewed by the Sentence Review Board, 

Coleman also applied to the Sentence Review Board for review 

of his death sentence. The Board turned him down, and properly 

so, stating in its order of denial that it had no jurisdiction 

to review a death sentence. 

After the Sentence Review Board denied Coleman's request, 

Coleman then applied to this Court for an order to compel the 

Sentence Review Board to review his death sentence. As authority, 

he cited McKenzie - 111. But this Court, in an unpublished opinion 

and order, upheld the Sentence Review Board, and held that the 

Sentence Review Board had no jurisdiction to review a death 

sentence. I agreed with this holding and signed the order 

because it affirmed exactly what I have always been contending-- 

that the Sentence Review Board has no authority to review a 

death sentence. 

That order in Coleman was handed down before McKenzie 

- I11 was handed down. In my dissent to McKenzie 111, I cited 

and quoted from the Coleman order in support of my position 

that the Sentence Review Board had no jurisdiction to review 
a death sentence and therefore that those statutes could not 

be relied on as being part of the constitutional statutory 

scheme relating to the death penalty. Of particular interest 

in the Coleman order is the statement quoted in the McKenzie 

- 

I11 dissent and repeated here, that: 

". . . It would not only be extra-statutory but 

an anomaly were we to hold that the conclusions 

of this Court on review of death sentences were 

subject to later review by the Sentence Review 

~ivision of this Court." 608 P.2d at 487. 

With that I wholeheartedly agree. That is my position 

now and it has always been my position. And it is precisely 

why this Court should now review its holding that the Sentence 

Review Board can review the McKenzie death sentences. Sentence 

review before the Sentence Review Board was as anomalous for 

McKenzie as it was for Coleman. Yet the majority has avoided 

a reconsideration of this issue, even though it is demonstrably 

wrong, by the use of its special McKenzie post-conviction rule. 

To review this Court's erroneous decision would mean a favorable 

decision for McKenzie, and that is precisely what this Court does 

not want. 

I have again emphasized this matter here because it 

vividly demonstrates the way in which the majority has 

twisted the law to uphold what would otherwise be a constitutionally infirm death sentence. A federal court would have to 

be blind and utterly insensitive to the law if it did not 

see through what the majority has done to McKenzie in each 

of his appeals. The death penalty statutory scheme is, on 

its face, patently unconstitutional. And the special creation 

of the death penalty scheme by the majority is also patently 

unconstitutional as applied. 

B. UNCONSTITUTIONALITY OF DEATH PENALTY STATUTES 

MANDATING DEATH "UNLESS THERE ARE MITIGATING CIRCUMSTANCES" 
Sections 94-5-105, R.C.M. 1947 (deliberate homicide) 

and 94-5-304, R.C.M. 1947 (aggravated kidnapping where the 

kidnapping results in the death of the victim) both mandated 

the death penalty "unless there pare mitigating circumstances." 

It appears, however, that the trial court concluded that since 

there was only one victim involved it could not impose two 

separate death sentences. (Conclusion no. 1.) Nonetheless, 

the sentencing court found that there were no mitigating circumstances and therefore imposed the death penalty. 

McKenzie argues that the language "unless there are 

mitigating circumstances," gives the sentencing court unbridled 

discretion to determine whether there are mitigating circumstances, 

and that the United States Supreme Court has invalidated 

statutes which give this uncontrolled discretion to the 

sentencing authority. I believe that this wording does 

precisely that. It is also an abrogation of legislative 

responsibility to fail to set guidelines for both the mitigating 

factors that must be considered by the sentencing court and 

the weight to be given these mitigating factors. 

The deliberate homicide statute, section 94-5-105, R.C.M. 

1947 (1973 Supp.) sets forth a list of six aggravating circumstances. The finding that one or more of these circumstances 

existed mandates the death penalty "unless there are mitigating 

circumstances." (See I4cKenzie 111, 581 P.2d at 1227, where 

this statute is set out in its entirety.) The sentencing court 

found that an aggravating circumstance was fulfilled, that is, 

that "the deliberate homicide was committed by means of torture." 

In sentencing McKenzie to death, it appears that the court relied 

on the jury's special interrogatory finding that the victim was 

dead as a result of the torture. The court then concluded 

that no mitigating circumstances existed, and therefore sentenced 

McKenzie to hang. 
The aggravated kidnapping statute, section 94-5-304, 

R.C.M. 1947, contained a similar "unless there are mitigating 

circumstances" clause. That statute provided: 

"A 

£01 

if 

res 

mi t 

court shall impose the sentence of death 

lowing conviction of aggravated kidnapping 

it finds that the victim is dead as the 

ult of the criminal conduct unless there are 

.igating circumstances." 

Yet, there was no statute which enumerated what the 

legislature considered "mitigating circumstances" to be. 

In Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 

64 L.Ed.2d 398, the United States Supreme Court held that a 

death penalty statute must contain "clear and objective standards" 

and "specific and detailed guidance" for the sentencing authority. 

Measured by this declaration, the language of both statutes-- 

"unless there are mitigating circumstances"--has neither clear 

and objective standards nor specific and detailed guidelines. 

The judge's discretion to find mitigating circumstances is 

absolute. 

The United States Supreme Court has vacated death sentences 

imposed under statuges which provide the sentencing court with 

the same unbridled discretion as do the Montana statutes. 

See Tilford v. Page (1972), 408 U.S. 939, 92 S.Ct. 2873, 33 

L.Ed.2d 761; Williams v. Kentucky (1972), 408 U.S. 938, 92 

S.Ct. 2870, 33 L.Ed.2d 759; and Herron v. Tennessee (1922), 

408 U.S. 937, 92 S.Ct. 2865, 33 L.Ed.2d 756. These decisions 

were essentially based on the holdings of Furman, supra and 

Gregg, supra. The Montana statutes are in effect no different. 

They enumerate no mitigating circumstances and thus give the 

sentencing judge unguided discretion to impose or to withhold 

the death penalty according to his own whims. Discretion cannot 

be broader than that. 

Under the Montana statutes, if the judge chooses to 

recognize a mitigating circumstance, he can do so, and thereby 
withhold a death sentence, but, as was done here, if he 

chooses not to recognize a mitigating circumstance, he can 

thereby assure that the defendant will receive a death 

sentence. The United States Supreme Court has found similar 

statutes to be unconstitutional since they give the sentencing 

judge uncontrolled discretion to impose the death penalty 

according to his own whims. 

Assuming, then, that McKenzie was not entitled to a new 

trial (minimum due process standards dictate that he - is entitled 

to a new trial), I would vacate the death sentences that were 

imposed for deliberate homicide and aggravated kidnapping and 

direct that on resentencing the death penalty is not to be 

considered. 

C. FAILURE TO ACCEPT MENTAL DISEASE OR PSYCHIATRIC 

DISORDER AS A MITIGATING FACTOR UNDER SECTIONS 95-5-501(1), 

AND 95-5-304, R.C.M. 1947 

Still another argument is that even though the statutes 

set forth no mitigating circumstances, a mental disease or 

psychiatric disorder was proved at the trial and as a matter of 

law it must be accepted as a mitigating circumstance, thereby 

precluding the death penalty for either conviction. McKenzie 

also attacks the sentencing court's order which balanced the 

mitigating factors against the aggravating factors, and determined that the aggravating factors clearly outweighed any 

mitigating factors. McKenzie claims, and correctly so, that 

section 95-5-304, R.C.M. 1947, does not permit a weighing of 

aggravating factors against mitigating factors. Rather, he 

argues that if a mitigating factor is found to exist as a 

matter of lay then a death sentence cannot be imposed. 

The trial court sidestepped the issue and so did this 

Court. In ruling on McKenzie's petition for post-conviction 

relief, the trial court held that the sentencing court had 
found McKenziels mental disease to be "insufficient - to 

outweigh the aggravating circumstances found by --- the jury." 

And the majority here, in seizing on this ruling, agreed with 

the trial court that the existence of a mental disease or 

psychiatric disorder "does not automatically immunize a 

defendant from the death penalty." 38 St.Rep. at 1760. Both 

decisions evaded the issue raised by McKenzie. 

Neither statute says anything about the sufficiency of 

a mitigating circumstance; neither statute requires balancing 

the aggravating factors against mitigating factors. Each 

statute clearly mandates the death penalty "unless there are 

mitigating circumstances." Here we have a situation where the 

sentencing court found that a mental disease or psychiatric 

disorder did exist as a mitigating factor, but nonetheless 

it rewrote them and declared that the aggravating factors 

outweighed the existence of any mitigating factors. 

This is a patently unconstitutional construction of a 

death penalty statute, for all death penalty statutes must 

be strictly construed against the state with the benefit of 

all doubts going to the defendant. Beck, supra; Andres, 

supra. 

Here the sentencing court improperly - expanded the death 

penalty statute in order to impose the death penalty. 

McKenzie further supports his argument by contending 

that the existence of a mental disease or psychiatric disorder 

is universally recognized by the courts as a mitigating factor. 

Lockett, supra. In this case, the State has not disputed that 

a mental disease or psychiatric disorder was proved at trial. 

The dispute goes only to the nature of that disease or disorder, 

rather than to its existence. McKenzie argues that the 

sentencing court was not only required to recognize this as 

a mitigating factor, but that once it did so, the plain statutory 
language of sections 94-5-304 and -501(1), R.C.M. 1947,-- 

"unless there are mitigating circumstances"--mandated that 

the death penalty not be imposed. 

The question is not, as the trial court and the 

majority have stated, whether such a condition "automatically 

immunizes a defendant from the death penalty,'' but whether 

the statutes involved permit the sentencing court to nonetheless 

impose the death penalty once a mental disease or psychiatric 

disorder is found to exist. Since death penalty statutes must 

be strictly construed against the State, this Court must hold 

that the sentencing court had no statutory right to impose the 

death penalty. The sentencing judge clearly went beyond his 

statutory powers by weighing the aggravating factors against 

the mitigating factors. This is still another reason for 

vacating the death sentence and remanding this case for 

resentencing with directions that the sentencing court not 

consider the death penalty. 

D. SECTIONS 94-5-304 and -501(1), R.C.M. 1947, UNCONSTITUTIONALLY SHIFTED THE BURDEN TO DEFENDANT TO PERSUADE THE 

SENTENCING COURT TO SPARE HIS LIFE 

McKenzie alleged in section 10(g) of his petition for 

post-conviction relief that sections 95-5-304 and -501(1), 

R.C.M. 1947, unconstitutionally shifted the burden to him to 

dissuade the sentencing court from imposing the death penalty. 

The majority's failure to mention this as one of the issues 

undermines still more its statement that in all of the annals 

of criminal case history in the state, never has there been 

a case treated with more "tender legal care." 

The United States Supreme Court has not yet decided 

the issue raised by McKenzie. In Lockett, supra, the Court 

expressly declined to rule on this issue because it chose to 

vacate the death sentence for other reasons. 
In both Coleman I11 and Fitzpatrick 111, I dissented 

on this issue, stating that this burden of persuasion should 

never, in a capital case, be shifted to the defendant. The 

burden of proving why a defendant's life should be taken 

should always rest with the State. The reasons given in Coleman 

- 111 and Fitzpatrick -- 111 also apply here--the statute is worded 

differently, but the effect is precisely the same. 

The majority has evaded this issue altogether. The trial 

court, however, considered this issue, but decided it improperly. 

The trial court held that the sentencing order did not -- on its 

face indicate that the sentencing court had placed the burden 

on McKenzie to dissuade the court from imposing the death 

sentence. Yet, that is precisely the effect given to the 

statute by the sentencing court. In holding that any mitigating 

factors did not operate to offset the aggravating factor~~the 

sentencing court impliedly ruled that it was McKenzie's burden 

to convince him to the contrary. Furthermore, the statutory 

language "unless there are mitigating circumstances," imposed 

an impossible burden on McKenzie. He not only had to persuade 

the sentencing court that mitigating factors offset any 

aggravating factors, but he also had to be a mindreader to 

determine what the sentencing court would consider as a mitigating 

factor and what effect the court would give it. That is an 

unacceptable situation at any sentencing hearing and it is 

intolerable where a death sentence may result. 

In Fitzpatrick - 111, 38 St.Rep. at 1460 (and impliedly 

in Coleman - III),the majority held that the statute was not 

unconstitutional, even though it did indeed shift the burden 

of persuasion to the defendant. I dissented to both cases. 

See Coleman 111, 633 P.2d at 659; Fitzpatrick - 111, 38 St.Rep. 

at 1464NK. The statute challenged by both Coleman and 

Fitzpatrick, section 46-18-305, MCA, provides in part that 
". . . the court . . . shall impose a sentence of death if 

it finds one or more of the aggravating circumstances and 

finds that there are no mitigating circumstances sufficiently 

substantial to call for leniency." 

Insofar as the burden of persuasion is concerned, this 

statute is no different in effect than the statutes challenged 

here by McKenzie. In each instance, the burden is shifted 

to the defendant facing a possible death sentence to dissuade 

the sentencing court from i~~posing it. In fact, the statutes 

applied to McKenzie are worse because they further impose on 

the defendant the burden to read the mind of the sentencing 

judge in order to determine what that judge may consider as 

mitigating circumstances and what weight he will give to 

them. 

Assuming again that the issues raised in this appeal 

do not require a reversal of the convictions and a new 

trial, the unconstitutional statutes applied to McKenzie 

require that the death sentences be vacated and that the 

case be remanded for resentencing with instructions that the 

death penalty is not to be considered. 

E. IMPROPER EXPANSION OF DEATH PENALTY STATUTES TO 

INCLUDE NONSTATUTORY AGGRAVATING FACTORS TO BE WEIGHED AGAINST 

MITIGATING FACTORS--FAILURE TO GIVE NOTICE TO DEFENDANT 

In imposing the death penalty, the sentencing judge did 

not confine himself to the aggravating circumstance of 

torture that was found to apply to McKenzie,but he also added 

seven nonstatutory aggravating factors and then weighed the 

aggravating factors against the mitigating factors. 

McKenzie argues that the sentencing court impermissibly 

expanded the scope of the sentencing inquiry and that 

he was prejudiced because the court had not given him notice 

that it would do so. McKenzie irrefutably claims that he 
did not know the sentencing court was going to consider 

nonstatutory aggravating factors. McKenzie further claims 

that the sentencing judge came to the sentencing hearing with 

his findings, conclusions, and order of death already prepared 

and ready to be filed at the conclusion of the hearing. It 

was only when this order was filed that McKenzie learned that 

the court expanded the scope of the aggravating circumstances 

statute (section 94-5-105, R.C.M. 1947) and had added seven 

nonstatutory aggravating circumstances as reasons for imposing 

the death penalty. McKenzie argues that this expansion violated 

his Eighth Amendment rights, and that the court's failure to 

give notice of what it would consider violated his due process 

rights under the Montana and United States Constitutions. 

(Strangely enough, the sentencing judge in Coleman also arrived 

at the sentencing hearing with his findings, conclusions and 

order of death already prepared.) 

The sentencing court had no right to expand the scope 

of the inquiry by adding nonstatutory aggravating factors. 

The death penalty statutes must be self-contained if they are 

to have any meaning at all, and the judge's conduct is therefore 

impermissible. But assuming that the court had the right to 

consider these nonstatutory aggravating factors, it had the 

duty of notifying McKenzie in advance of the hearing that it 

would be expanding the scope of the inquiry, and had a further 

duty to tell McKenzie exactly what additional factors would be 

considered. Only by this procedure could McKenzie receive a 

meaningful opportunity to present evidence on each of the 

nonstatutory aggravating factors. The fact that the court 

came to the sentencing hearing armed with a sentence of death 

is clear evidence of an intent to deny McKenzie even a semblance 

of due process. 
I must state again that the majority opinion has 

failed to address the fundamental and underlying issues 

raised. The majority, with no statement of its reasoning, 

held it was proper for the sentencing court to consider the 

seven nonstatutory aggravating factors, but the majority fails 

to mention that McKenzie nonetheless argues he was entitled 

to notice so that he could present evidence on the factors the 

sentencing court would consider. The majority's self-laudatory 

statement that McKenzie has been given the most "tender legal 

care" in all the annals of Montana criminal justice again 

becomes meaningiess in this case. 

On this issue also I would vacate the death sentence 

and remand with instructions that the death penalty is not 

to be considered as one of the options far the sentencing 

court. 

F. IMPROPER EXPANSION OF DEATH PENALTY STATUTES TO 

INCLUDE NONSTATUTORY AGGRAVATING FACTORS TO BE WEIGHED 

AGAINST MITIGATING FACTORS--FAILURE TO GIVE NOTICE TO DEFENDANT 

The jury made no findings that McKenzie deliberately 

took the victim's life, and McKenzie therefore argues that 

the imposition of the death penalty violates the Eighth and 

Fourteenth Amendments. He argues against the homicide conviction on the assumption that the jury found him guilty of 

deliberate homicide, rather than the trial court's offense 

of "deliberate homicide by means of torture." With this 

assumption, however, McKenzie argues that the jury may have 

applied the felony murder rule in finding him guilty of 

deliberate homicide (see section 94-5-102, MCA) and therefore 

it did not make the finding that he deliberately took the 

victim's life. As to the aggravated kidnapping conviction, 

the jury also found that the kidnapping resulted in the victim's 

death, but the jury made no finding that McKenzie deliberately 

took her life. 
On the day set for sentencing, the trial court came 

to court with its findings and conclusions and death sentence 

already prepared. The trial court expressly relied on the 

jury's findings in imposing the death sentence. The court 

referred twice to what it considered the jury's findings to 

be. Finding no. 4 stated: "The evidence in the case, - as 

found --- by the jury discloses a brutal, conscienceless, torture, 

rape and deliberate killing of a human being." (Emphasis added.) 

Finding no. 6 stated: 

"That the jury rejected the verdict form finding 

the defendant not guilty by reason of a mental 

disease or defect which excludes responsibility 

for criminal conduct which was submitted to them 

and correctly -- found the defendant guilty of 

deliberate homicide which - - - was -- bv means ~£-torture. 

and guilty of ~~gravated ~idna~pin~ whiz -- resulted 

in the deathof the victim." (Emphasis added.) 

But the jury did not expressly find that McKenzie 

deliberately took the victim's life--this is true in relation 

to both convictions. To assume that the jury imnliedly found 

that McKenzie deliberately took the victim's life it must be 

assumed further that the jury convicted McKenzie of "purposely 

or knowingly" causing Lana Harding's death rather than causing 

it in a felony-murder situation. The jury was instructed 

alternatively on the deliberate homicide charges, and thus, 

there is no basis to determine from the record which theory 

the jury used in convicting McKenzie. 

The aggravated kidnapping conviction is similarly 

defective. The instructions did not require the jury to find 

that McKenzie, in committing the aggravated kidnapping, 

deliberately took the victim's life. And the returned verdict 

reveals only that the victim died as a result of the kidnapping-- 

the jury made no finding that McKenzie deliberately took her 

life. 
Unfortunately, the majority opinion omitted any 

reference to the homicide conviction and deals only with the 

aggravated kidnapping conviction. 

AGGRAVATED KIDNAPPING: ABSENCE OF A JURY FINDING THAT 

McKENZIE DELIBERATELY TOOK THE VICTIM'S LIFE 

The jury returned the following aggravated kidnapping 

verdict: 

"A. We, the jury, in the above-entitled cause, 

find the defendant Guilty of the offense of 

Aggravated Kidnapping as charged. 

"B. We further find that Lana Harding (did)(d*d 

not) die as a result of said Aggravated Kidnapping. 

"(Strike out bracketed word or words that do not 

apply. " 

This verdict shows that the jury was not asked to find 

that McKenzie deliberately took the victim's life. This 

returned verdict cannot support the conclusion that the jury 

made that determination. Whether the jury believed that 

McKenzie deliberately took the victim's life is another question 

altogether. It is sufficient to say that no such finding 

appears in the record. The finding that the aggravated 

kidnapping resulted - in - the -- death of the victim is not equivalent 

to a finding that McKenzie deliberately took the victim's 

life. 

Nor did the trial court make independent findings on 

this question. Rather, in imposing the death penalty, it 

expressly relied on what it believed the jury had found. 

(Finding no. 4, supra.) But in denying post-conviction relief 

to McKenzie, both the trial court and this Court have ignored 

the issues, and instead simply imposed their own views of 

what the evidence disclosed, rather than relying on what was 

actually found or not found. Without reaching the issues 

raised by McKenzie, the majority states: 
"In McKenzie 111, 608 P.2d at 459, as the District 

Court noted in considering petitioner's application 

for post-conviction relief, we found the evidence 

on the issue of intent to be overwhelming, uncontradicted and permitting of but one rational 

conclusion--that McKenzie intended to kidnap and 

kill the victim." 38 St.Rep. at 1759. 

The trial record does not support this statement. First, 

this statement assumes that the jury or judge made these 

necessary findings. That is not the case. Second, this 

statement does not accurately reflect the evidence. The 

evidence on the question of intent was not uncontradicted. A 

psychiatrist testified that McKenzie could neither appreciate 

the criminality of his acts nor conform his conduct to the 

requirements of law. This question surely goes to the issue 

of criminal intent--and criminal responsibility. Criminal 

responsibility can arise only if criminal intent exists. Third, 

the majority's statement ignores the fact that the State's 

case was aided mightily by a barrage of unconstitutional 

Sandstrom-type instructions which allowed the jury to presume 

criminal intent. 

Regardless of what the majority perceived the evidence 

to be, the simple fact is that the majority is not the 

fact-finder. That is the function of the jury. And regardless 

of what the evidence shows, the fact is that the record does 

not demonstrate that the jury in fact found that McKenzie 

possessed the intent to kill. The fault may lie with the jury 

instructions or with the verdict forms, but that does not 

alter the situation. The jury did not make the findings 

necessary for the imposition of the death sentence. 

In criticizing this Court for usurping the power of the 

jury and serving as a fact-finder, Justices Marshall and 

Brennan stated: 
"But what evidence did the court [the Montana 

Supreme Court] find sufficient to overcome the 

constitutional error of directing the jury to 

presume the presence of the requisite criminal 

intent from the nature of the acts committed? 

The Montana court itself relied solely on 'the 

vicious manner in which the crimes were committed' 

in concluding that petitioner 'purposely and 

knowingly intended' to commit the crimes. Id., at 450, 

459. I cannot --- help but be shocked -- that in taking 

this approach, the Montana court simply applied 

- the forbidden presumption. In so doing,the court 

neqlected to perform its task on review: it 

failed to examine whether the disapproved instructions 

could have infected the jury verdict. Instead, 

the court served as another factfinder, again 

impermissibly placing the burden on petitioner to 

disprove that the nature of his acts established 

the-requisite criminal intent. It surely cannot 

be that a verdict followins an unconstitutional 

instruction permitting --- the jury to presume 

criminal intent-can Tbe immunized from reversal 

because - the reviewlns d court also impermissibly - - 

presumes criminal intent." - U.S. , 101 

S.Ct. 626, at 628-29, 66 L.Ed.2d 507, at 509. 

(Emphasis added.) 

Not only did this Court erroneously apply the forbidden 

presumption in reaching the conclusion that proof on the 

question of intent was overwhelming, but it again has overlooked 

the even more important fact that the jury was never directly 

told to determine as part of its verdict the question of 

whether McKenzie deliberately took the victim's life. The 

jury found only that the aggravated kidnapping resulted in 

the victim's death. 

Nor can we read into the jury's verdict an implied 

finding that McKenzie deliberately took the victim's life 

in the course of committing the aggravated kidnapping. None 

of the instructions on aggravated kidnapping (instructions 

no. 25, 29-V and 36)required the jury to find that ~c~enzie 

deliberately took the victim's life. The only other instruction 

involved concerns the special finding the jury was to make 

if it found McKenzie guilty of aggravated kidnapping--the 

jury was then to determine if the aggravating kidnapping 

resulted in the victim's death. (Instruction no. 54-111.) 
This instruction does not tell the jury that it must, 

before making that finding, determine that McKenzie 

deliberately took the victim's life. 

The next question is whether the sentencing judge, 

in the absence of a jury finding that McKenzie deliberately 

took the victim's life, could make that finding himself as 

part of the sentencing process. In this case, finding 

no. 4, supra, is so vague that I cannot determine whether 

the sentencing judge made that independent determination or 

not. But if I had to interpret this finding, I would say 

that the sentencing judge simply relied on what he considered 

to be the jury's finding--a totally misplaced reliance because 

the jury did not make the findings that tI:e Court. said it did. 

Assuming arguendo, however, that the sentencing judge 

did make independent findings that McKenzie deliberately 

took the victim's life, it is my position that this function, 

as a prelude to imposing a sentence of death, can only be 

made by a jury, and that such a finding by the sentencing 

judge is constitutionally prohibited. See my dissents in 

Coleman - 11, 605 P.2d at 1045; Coleman 111, 633 P.2d at 660- 

61; and Fitzpatrick - 111, 38 St.Rep. at 1465F~-65GG. 

I would adhere to the trial record's showing of what 

the jury found, as opposed to the majority's conclusion of 

what the evidence shows. Based on the absence of a finding 

that McKenzie deliberately took the victim's life, I would 

vacate the death sentence since it is based in part on the 

jury's finding that the aggravated kidnapping "resulted in 

the death of the victim." 

DELIBERATE HOMICIDE: ABSENCE OF A JURY FINDING THAT 

MCKENZIE DELIBERATELY TOOK THE VICTIM'S LIFE 

Although the jury made no finding that McKenzie intended 

to kill his victim, the real problem with this conviction is 
that McKenzie has been convicted of a nonexistent offense 

(see part of this dissent) . Beyond this, however, the 

majority has failed to mention this issue in its opinion-- 

anothen example sf the "tender legal carew--that the majority 

claims it has given McKenzie in reviewing his convictions 

and death sentences. 

Since the jury convicted McKenzie of deliberate homicide 

by means of torture, the only result is that the conviction 

must be reversed with directions to dismiss that charge since no 

such offense exists. But if the jury did convict McKenzie 

of deliberate homicide based on either subsections 94-5-102(a) 

or (b) , R.C.M. 1947, the question then arises as to which 

subsection the jury convicted him of. Lf the jury used subsection 

(a), and therefore decided that McKenzie "purposely or knowingly" took the victim's life, its decision would be constitutionally sufficient. On the other hand, if the jury applied the 

felony-murder rule of subsection (b), there would be no finding 

that McKenzie deliberately took the victim's life and therefore 

its decision would be unconstitutional. 

Assuming that the jury did convict McKenzie under either subsections 94-5-102 (a) or (b), R.C.M. 1947, McKenzie argues 

that the record fails to reveal which theory of criminal 

responsibility the jury applied, and therefore the death 

penalty cannot be imposed. The certainty required in death 

penalty cases means that the defendant must be given the 

benefit of any doubt arising from the proceedings. Since it 

cannot be determined whether the jury used subsection (a) or 

subsection (b) in reaching its conviction, this doubt, McKenzie 

argues, means that he cannot constitutionally be sentenced to 

death. 
Unfortunately, the majority opinion is silent on 

this issue. I assume, however, that had the opinion dealt with 

the issue, it would have done so in the same way that it 

Zcalt with the aggravated kidnapping issue--that is, that the 

evidence was overwhelming and uncontradicted. And, of 

course, my arguments would be the same here as they are on 

the aggravated kidnapping issue. The evidence on the question 

of intent is certainly contradicted by the psychiatrist 

testifying on behalf of McKenzie, and was impacted by the 

use of the unconstitutional Sandstrom-type instructions. 

The majority had no right to determine the facts itself. The 

jury either found that McKenzie deliberately took the victim's 

life or it did not. 

McKenzie relies again on Lockett, supra, and the concurring 

opinions of Justices White and Marshall in arguing that, 

miniminally, the Eighth Amendment requires a jury finding 

that the defendant had the purpose to take the victim's life. 

If this is the law, then McKenzie cannot be executed. 

The homicide conviction is complicated by several factors. 

As I have already explained, the jury verdict cannot be read 

in isolation from the instructions, but rather, can only be 

understood in relation to them. The verdict returned by the 

jury stated: 

"A. We, the jury in the above entitled cause 

find the defendant guilty of the offense of 

Deliberate Homicide as Charged. 

"B. We further find that the Deliberate Homicide 

(was) (wes ~et) by Means of Torture. 

"(Strike out the bracketed word or words which do 

not apply.) 

In part IV, of this dissent, I have explained how 

this returned verdict was tied directly into the explanation 

and definition of the nonexistent offense of deliberate 
homicide by means of torture, and that the jury had no 

choice but to use this guilty verdict form, for it was 

provided with no others. 

But to set aside the conviction of a nonexistent 

offense, the findings in this verdict must still be explained 

by the instructions. Finding A says that the jury found 

McKenzie guilty of "Deliberate Homicide as Charged." The 

fact is that McKenzie was charged with deliberate homicide 

under the two theories contained in section 94-5-202, R.C.M. 

1947. The first theory, subsection (a), requires that the 

jury find the defendant "purposely or knowingly" killed the 

victim. The second theory, subsection (b), is a statement 

of the felony-murder rule and does not require finding that 

the defendant "purposely or knowingly" killed the victim or 

that he intended to do so. The jury was instructed alternatively 

on these theories and its verdict does not state which theory 

it applied in reaching its decision. 

Nor can Finding B support an implication that the jury 

found McKenzie intended to take the victim's life. The only 

instructions defining the word "torture" or "by means of 

torture" are contained in the instructions defining the 

nonexistent offense of "deliberate homicide by means of 

torture." In each of these instructions the jury was 

expressly told that in order to find McKenzie guilty of 

deliberate homicide by means of torture, it did not have to 

find that he intended to kill the victim. (Instructions no. 

23, 29-11 and 34.) 

Specifically, instruction no. 23 stated in part: 

". . . is guilty of the offense of Deliberate 

Homicide by Means of Torture, whether or -- not 

--- it was the purpose or intention of -- the assailant 

- to cause -- such death." (Emphasis added.) 

And instruction no. 34 repeated this same language: 
"And if you find one or more of said particular 

purposes to have been proved beyond a reasonable 

doubt and that the defendant killed her while 

purposely so inflicting cruel suffering upon 

her, he has committed the offense of Deliberate 

Homicide by means of Torture, whether --- 

it was or 

was --- not his purpose - or intention --- to kill her." 

(Emphasis added. ) 

Surely it cannot be determined from these instructions 

--the only ones defining "by means of torturem--that the jury 

found McKenzie intended to kill his victim. The most that 

can be said is that the jury was free to reach a verdict 

without ever considering whether McKenzie intended to kill. 

It is possible, of course, that the jury subjectively decided 

that McKenzie did possess the intent to kill, but nowhere is 

that decision revealed or implied. If, before a death penalty 

can be constitutionally imposed, the jury must find and the 

record must reveal that the defendant intended to kill the 

victim, it is manifestly clear that here the death sentence 

cannot constitutionally be imposed. Neither the returned 

verdicts nor the instructions required the jury to make this 

/ 

decision. Whether the jury subjectively reached this decision 

is another question, but obviously a death penalty cannot be 

imposed based on what a jury subjectively thought. 

I believe that only a jury can make the decision of --- 

whether a person can live or die, and --- only a jury can make 

the underlying decisions as well. Accordingly, if the sentencing 

judge made the findings himself, this would amount to a 

usurpation of the function of the jury, and the judge's findings 

could not constitutionally stand. 

But I am not certain that the sentencing judge himself 

made an independent finding concerning an intentional taking 

of life. Rather, it appears that he relied on the jury's 

determination, yet realized that the jury had not made that 

determination. Again, the only finding on this issue stated: 
"4. The evidence in the case, and as found 

by the jury discloses a brutal, conscienceless, 

torture, rape and deliberate killing of a human 

being." (Emphasis added.) 

This finding, if it can be called that, is ambiguous 

at best. Did the sentencing court make its own findings on 

the facts stated, or did it rely on the jury's decision on 

these issues? By eliminating the words--"and -- as found by - 

-- the juryn--it would appear that the sentencing court made 

its own findings. On the other hand, with the words--"and -- as 

found --- by the juryw--it would appear that the sentencing court 

was merely repeating the facts which i.t believed the jury to 

have found. This being a capital case, I believe that finding no. 

4 is so ambiguous that it cannot stand as one of the founda.tions 

on which the death penalty can be imposed. Nonetheless, the 

finding is filled with error. 

First assuming that the sentencing court was merely 

relying on the jury's ckcis3-on, finding no. 4 is flatly wrong in 

several respects. First, the jury did not expressly or 

impliedly find that McKenzie intended to kill the victim. If 

the sentencing court used this finding as foundation on which 

to impose the death penalty, then the death sentence cannot 

stand . 

Second, although the jury did determine that the homicide 

occurred "by means of torture," the jury only could have 

decided this issue by using the deliberate homicide - by means 

- 

of torture instructions (instructions no. 23, 29-11 and 34). 

This again means that the jury found McKenzie guilty of a 

nonexistent offense. 

Third, the jury did not find that McKenzie had raped the 

victim. Although McKenzie was charged with rape and evidence 

was presented that the victim had been raped, the jury, because 
of the trial court's instructions, did not reach that 

charge. The trial court expressly told the jury that if 

it found McKenzie guilty of aggravated kidnapping or 

deliberate homicide by means of torture, or both, it would 

not have to consider the lesser charges because they were 

classified as lesser-included offenses (See instruction no. 

54, part 111). That is precisely what happened and the trial 

court accepted the jury's verdicts. Obviously, because of the 

alternative charges, an implied finding of rape was not 

necessary to either an aggravated kidnapping or deliberate 

homicide conviction. 

Fourth, there is a real question concerning whether 

the victim was tortured within tlie definition 

of torture given to the jury. This is also an issue that 

McKenzie has continually raised but this Court has consistently 

avoided. There is no doubt that the victim was brutally murdered, 

but a brutal murder does not mean that it was a murder by 

torture. McKenzie argues that there is not substantial evidence 

to support a finding that the victim was tortured. (See part V 

of this dissent.) 

Because I believe that the jury in fact convicted 

McKenzie of the nonexistent offense of deliberate homicide by 

means of torture, much of my discussion is unnecessary. On 

the other hand, because the majority has not only ignored this 

issue but also the issue relating to whether the jury found 

that McKenzie deliberately took the victim's life, I feel 

compelled to express my views. Clearly, the jury did not 

expressly or impliedly find that McKenzie deliberately killed 

his victim. This being so, the death penalty cannot be imposed. 

Even assuming that the deliberate homicide by means of 

torture conviction does not have to be reversed and dismissed 
because there is no such crime, I would in any event, because 

of my views expressed here, remand the case for resentencing 

with instructions that the death penalty is not to be 

considered. 

G. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE 

WHETHER THE DEATH PENALTY IN MONTANA IS IMPOSED ARBITRARILY, 

WANTONLY, FREAKISHLY AND DISCRIMINATORILY 

In upholding the death penalty as an abstract principle, 

the United States Supreme Court left the door open for the 

factual claim that the death penalty may be imposed arbitrarily, 

wantonly, freakishly, and discriminatorily. llcKenzie has 

attacked the Montana death penalty on precisely this ground 

and has set forth in a supporting affidavit facts which he 

claims an evidentiary hearing will prove. He alleges that 

no person has been executed in this state since 1943, and 

that now the only persons on death row are himself, Coleman 

and Fitzpatrick. He claims that he and the other defendants 

have been arbitrarily selected to receive the death penalty, 

and that scores of defendants before and since have been 

convicted of capital crimes but have not received the death 

penalty. 

In Gregg, supra, the United States Supreme Court, 

extremely conscious that its holding in Furman, supra, had 

been misinterpreted, attempted to distill what it considered 

to be the essence of Furman. In Gregg, the Court explained 

that part of its Furman holding invalidating Georgia's death 

penalty, was that the death penalty was being imposed 

discriminatorily, wantonly and freakishly, and so infrequently 

that any given death sentence was cruel and unusual. Gregg 

(White J., concurring), 428 U.S. 220-221. This conclusion 

in Furman was reached after considering the result of capital 

sentencing practices -- in fact, rather than by simply examining 
the abstract statutes on the books. Furman, 408 U.S. 

at 256-257 (Douglas, J., concurring); 408 U.S. 293-295 

(Brennan, J., concurring); 408 U.S. at 309-310 (Stewart, 

J., concurring); 408 U.S. at 311-314 (White, J., concurring). 

The Furman holding is simply an application of the 

long-established rule that a statute valid on its face 

can be administered in a manner violative of the Constitution: 

"The generality of a law inflicting capital 

punishment is one thing. What may be said of 

the validity of a law on the books and what 

may be done with the law in its application 

do, or may, lead to quite different conclusions." 

408 U.S. at 242 (Douglas, J., concurring). 

In Gregg, then, once having set forth what it considered 

its holding in Furman to be, the Supreme Court upheld the 

death penalty statutes then on the books in Georgia. The 

Court expressly recognized that the allegation that the new 

deatH penalty statutes were still imposed arbitrarily and 

discriminatorily was "unsupported -- by any facts." (~mphasis 

added.) 428 U.S. at 225 (White, J., concurring). In the 

absence of supporting facts, the Supreme Court declined to 

assume that the kind of arbitrary and discriminatory sentencing 

found in Furman had carried over to the new Georgia statutes 

and their application. 

But a different situation exists here. McKenzie 

alleged facts in his petition and supporting affidavit 

that directly challenged the assumption on which Gregg was 

based, and he offered to prove these facts at an evidentiary 

hearing. If proved, these facts would establish that the 

death penalty scheme was not just arbitrary and discriminatory 

on its face, but just as important, that it was arbitrary 

and discriminatory as applied. These allegations are clearly 

sufficient to require an evidentiary hearing. 
In refusing to order an evidentiary hearing on 

these claimed constitutional violations, the trial court 

and this Court have subverted the purpose of the postconviction relief statutes and have taken from McKenzie 

any opportunity to show in our state court system that the 

application of these statutes is unconstitutional. McKenzie 

has been deprived of a state remedy and a state forum to 

present his constitutional claims. 

H. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE 

THE CLAIM THAT THE DEATH PENALTY IN MONTANA IS SO INFREQUENTLY 

IMPOSED THAT IT NO LONGER SERVES A VALID STATE INTEREST AND 

THEREFORE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT 

Closely connected to McKenzie's claim of the arbitrary, 

wanton, freakish, and discriminatory application of Montana's 

death penalty is his claim that its infrequent use leads to 

the conclusion that it no longer serves a valid state interest, 

and is therefore cruel and unusual pu.nishment. 

Again, neither the District Court nor this Court ruled 

directly on this claim despite the fact that McKenzie has 

alleged evidentiary facts in support of his contention. 

In Furman, supra, the United States Supreme Court merely 

held that the death penalty is not per se unconstitutional, 

but the Court recognized certain limitations. Those limitations have been raised in this case, yet this Court has 

refused to permit an evidentiary hearing on the claim. In 

Furman, Justice White clearly pointed out in his concurring 

opinion that ". . . as the statutes before us are now 

administered, the penalty is so infrequently imposed that 

the threat of execution is too attentuated to be of substantial 

service to criminal justice." 408 U.S. at 313. Justice 

White also stated: 

". . . At the momei~t that [the deatll penalty] ceases 

realistically to further these purposes, however, 

the emerging question is whether its imposition 
in such circumstances would violate the Eighth 

Amendment. It is my view that it would, 

for its imposition would then be the pointless and needless extinction of life with 

only marginal contributions to any discernible 

social or public purposes. A penalty with such 

negligible returns to the State would be patently 

excessive and cruel and unusual punishment violative 

of the Eighth Amendment." 408 U.S. at 312. 

McKenzie alleged in his petition for post-conviction 

relief, and more particularly in his supporting affidavit, 

that just that point has been reached in Montana--that the 

death penalty, because of the infrequency of its imposition 

over the years, serves no valid state interest, and therefore 

constitutes cruel and unusual punishment violative of the 

Eighth Amendment. 

He has alleged the irrefutable facts that no one 

has been executed in Montana since 1943, despite the fact 

that scores of persons have been convicted of crimes where 

a death penalty could have been imposed. (The period in 

which the status of the death penalty's constitutionality 

was held in limbo by the United States Supreme Court is 

excluded.) But now, in the early 19701s, McKenzie argues 

that three defendants (McKenzie, Coleman, and Fitzpatrick) 

have been selected to receive the death penalty, despite the 

fact that during this same time period many other persons 

were convicted of capital crimes but not given the death 

penalty. He alleges that because the death penalty is 

infrequently imposed in Montana, the threat of execution is 

too remote to be of any value to the criminal justice system. 

Lacking this valid state interest, he claims that the death 

penalty in Montana has, in the words of Justice White, become 

". . . patently excessive and cruel and unusual punishment 

violative of the Eighth Amendment." Furman, 408 U.S.at 312. 
Both the trial court and this Court have ignored this 

challenge to the application of Montana's death penalty 

statutes. As justification for its decisioq the majority 

has seized on the language in Gregg, supra, that the death 

penalty, as an abstract principle, can be justified on 

principles of retribution and deterrence. But the majority 

has subverted Gregg by converting it into a general holding 

that if death penalty statutes are constitutional on their 

face, their application is permissible under principles of 

retribution and deterrence. The question the majority evades 

is whether one is entitled to an evidentiary hearing to 

prove his claim that the death penalty is imposed so infrequently 

that it no longer serves as either retribution or deterrence, 

and therefore results in ". . . the pointless and needless 

extinction of life with only marginal contributions to any 

discernible social or public purposes." Furman, 408 U.S. 

at 312. 

Obviously, these questions cannot be decided in a factual 

vacuum, and that is precisely why an evidentiary hearing is 

required. Retribution and deterrence may indeed be justifications which can withstand an Eighth Amendment challenge, 

but any statutory system of capital punishment can still be 

unconstitutional in its application. The majority's holding 

here has foreclosed any attempt to prove this claim in our 

state court system. This Court cannot delegate to the 

legislature the responsibility of ensuring that a system of 

capital punishment is constitutionally applied. The question 

of whether -- in fact a certain punishment violates the Eighth 

Amendment is a question solely for the courts. 

McKenzie has alleged facts, that, if proved, would fall 

clearly within Furman's restraining language. He is entitled 
to a hearing to present his proof supporting his allegations. 

The question of whether the death penalty has been unconstitutionally applied to him is not a question for the 

legislature, but clearly a judicial duty to see that the 

law is not only constitutional on its face, but that it is 

also constitutionally applied. 

I. AN EVIDENTIARY HEARING IS NECESSARY TO DETERMINE 

WHETHER THE DELAY BETWEEN THE SENTENCING AND THE EXECUTION 

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT VIOLATIVE OF THE 

EIGHTH AMENDMENT 

In paragraph 10(n) of McKenzie's petition for postconviction relief, McKenzie alleged that "his death sentence 

was unconstitutional because . . . the excessive cruelty 

involved in the extinction of a defendant's life after a 

prolonged period of waiting did not serve any valid state 

interest -- in fact." (Emphasis added.) McKenziels Appellate 

Brief at pp. 39-42. Somehow the majority, in rendering 

"tender legal care" to McKenzie, omitted any discussion of 

this issue. 

The trial court, however, did rule on the question, 

but missed the point. It merely relied on the general 

holding in Gregg, supra, that the death penalty is not cruel 

and unusual punishment, and it therefore concluded that 

McKenzie does not have a right to claim that the death penalty 

--- as in fact applied -- to him is unconstitutional. 

McKenzie again relies on language in Furman, supra, 

and in Gregg, supra, in which the Supreme Court left open 

the right to contend that the death penalty as applied is 

unconstitutional. McKenzie alleges that delay and infrequency 

in carrying out a death penalty deprive it from serving 

as a deterrent, and he also claims that this delay and 

infrequency add an element of mental anguish not present 
with other forms of punishment. He primarily relies on 

District Atty. for Suffolk Dist. v. Watson (Mass. 1980), 

411 N.E.2d 1274, which held in part that a death penalty 

defendant's ~rdeal between sentencing and death converts 

the death penalty into a form of cruel and unusual punishment. McKenzie claims that he should be allowed to present 

the more persuasive evidence which would demonstrate that 

excessively cruel capital punishment in reality serves no 

valid state interest. 

This argument, by itself, does not carry much intrinsic 

merit because almost invariably it is the defendant who is 

seeking to postpone his own death, and because the United 

States Supreme Court has mandated expedited appellate review 

before the execution can take place. Nonetheless, this 

argument, when combined with the claims of arbitrary imposition 

of the death penalty, certainly requires that the trial court 

hold an evidentiary hearing. A death penalty defendant who 

raises these constitutional claims must struggle against the 

judicial system to stay alive until they have been answered. 

J. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE 

WHETHER DEATH BY HANGING CONSTITUTES CRUEL AND UNUSUAL 

PUNISHMENT 

McKenzie's last claim directly attacking the death 

penalty is the allegation that death by hanging constitutes 

cruel and unusual punishment violative of the Eighth Amendment. He pleaded facts which stated the nature of the 

suffering by one who must hang by the neck until dead, and 

sought an evidentiary hearing in support of these allegations. 

He again relies on restraining language in Furman, supra, 

and Gregg, supra, stating that death penalty statutes, although 

constitutional on their face, may, as applied, constitute 

cruel and unusual punishment. He relies directly on State 

v. Frampton (1981), 95 Wash.2d 469, 627 P.2d 922, in which 
the Washington Supreme Court expressly ruled that death 

by hanging constitutes cruel and unusual punishment. 

In omitting this as an issue on appeal, the majority 

has once again undermined its gratuitous statement that 

in all of the annals of criminal law history in the State 

of Montana, no defendant has ever received more "tender 

legal care" than McKenzie. 

I believe that McKenzie is entitled to an evidentiary 

hearing to present evidence of this claimed violation of 

his constitutional rights. 
X. CONCLUSION 

In summarizing those issues where the majority 

has either ignored the issue entirely or misstated the 

issue or the nature of the problem presented, I again must 

emphasize that this is a death penalty case that requires 

the closest appellate court scrutiny. The United States 

Supreme Court has mandated this of all appellate courts, 

but even if it did not, our own sense of duty should compel 

the most careful and painstaking review. We have failed 

miserably in that obligation. 

To begin, in Coleman I11 and Fitzpatrick 111, this 

Court adopted one standard to determine whether issues raised 

is a post-conviction relief petition are res judicata. But 

here the majority has adopted a different and more restrictive 

standard than was applied in Coleman I11 and Fitzpatrick 111. 

The difference is more than cosmetic; the different test 

applied to McKenzie meant that the majority could avoid 

determining whether any issue decided on the merits was 

correctly decided on the merits. (See part I1 of this dissent.) 

McKenzie made three equal protection arguments concerning 

this Court's uneven application of the law to McKenzie's 

previous appeals: (1) that we applied search and seizure 

standards contrary to the law and applied them only in his 

case; (2) that this Courtls holding that he was not entitled 

to a lesser-included offense instruction on mitigated deliberate 

homicide was based on an application of the law which ignored 

the evidence and which was applied only in his case; (3) 

that this Court adopted an impermissible harmless error test 

(the overwhelming evidence test) to determine the impact of 

the eight unconstitutional Sandstrom-type instructions. The 

majority opinion ignored all three of these issues. (See 

part VI of this dissent.) 
McKenzie again claims that this Court has consistently 

failed to meet the issue of whether the State established 

probable cause that seizable items were located at McKenzie's 

home. This Court again has ignored this issue. (See part 

VI of this dissent.) 

On the plea bargain issue, McKenzie has always maintained 

that this Court ignored the trial record and instead relied 

solely on the State's appellate briefs, where, for the first 

time, the State asserted that no plea bargain existed. This 

Court has never addressed his contention in later appeals 

that we ignored the trial record. Further, the opinions have 

misstated the record. The majority held that the trial court 

found against McKenzie on the factual question of whether a 

plea bargain existed but the record is devoid of any such 

finding by the trial court, and, in fact, no evidentiary hearing 

on this issue was ever held. In fact, the trial court was a 

party to the plea bargain agreement. The majority stated that 

McKenzie had not alleged that the prosecutors had acted in 

bad faith when they backed out of the plea bargain agreement. 

But the record shows that McKenzie has consistently alleged 

that the prosecutors acted in bad faith. Finally, the majority 

misstated the record in concluding that McKenzie's claim of 

detrimental reliance was unfounded. (See part I11 of this 

dissent. ) 

The opinions have consistently ignored the deliberate 

homicide - by means - of torture issues raised by McKenzie. They 

have ignored the claims that the jury was 5nstructed that 

McKenzie was charged with the substantive offense of deliberate 

homicide by means of torture, that the jury was instructed on 

the elements of deliberate homicide by means of torture as a 

substantive offense, and that deliberate homicide by means of 
torture is not an offense defined by Montana law. In 

fact, not only was the jury erroneously instructed on 

these matters, but the probability is great that the jury 

did convict McKenzie of this nonexistent offense. (See 

part IV of this dissent.) 

Furthermore, the opinions, in concluding that the 

victim was tortured, fail to set forth the evidence which 

would support a jury finding that the victim met her death 

by means of torture. (See part IV of this dissent.) This 

Court also ignored the issue of whether the victim was 

tortured, within the meaning of the statute setting out the 

aggravated circumstance of "deliberate homicide by means of 

torture," and within the meaning of the jury instructions 

defining torture. This Court in fact failed to give any 

substantive meaning to the phrase "deliberate homicide by 

means of torture." (See part V of this dissent.) 

The majority's rulings on the death penalty issues are 

similarly deficient. This Court ignored the issues of 

whether it can be determined from the record whether the 

jury found that McKenzie deliberately took the victim's life. 

(See part IV of bhis dissent), whether from the instructions 

an appellate court could determine that the jury was required 

to find that McKenzie deliberately took the life of the victim. 

(See part VI of this dissent.) 

Further, this Court ignored the related issue of whether 

the jury convicted McKenzie of deliberate homicide by 

applying sections 94-5-102(a) or (b), R.C.M. 1947--each 

subsection creates a different theory of criminal responsibility 

for homicide. Under subsection (a) the jury must determine 

that a defendant purposely or knowingly took the victim's 

life. Under subsection (b) , the felony-murder rule, the 
jury is not required to make such a determination before 

finding a defendant guilty of deliberate homicide. (See 

part IV of this dissent.) 

In fact, the majority has misstated the records on a 

nonrelated issue in concluding that McKenzie was convicted 

of "purposely or knowingly" causing the death of Lana Harding. 

At 608 P.2d at 452-53, the majority states: 

"There are three types of criminal homicide. 

Defendant was charged with, -- - and convicted of, 

deliberate homicide, a criminal homicide committed 

purposely or knowingly. Section 95-5-102(1) (a), 

R.C.M. 1947. . ." (Emphasis added.) 

As I have shown in parts IV and V of this dissent, McKenzie 

was charged also with felony-murder, a theory which does not 

require that a jury find he purposely or knowingly took the 

victim's life; it is impossible to tell from the record which 

theory the jury applied in finding McKenzie guilty. The 

majority's unsupported assumption reflects the inadequate 

review that has characterized each of the McKenzie appeals. 

This Court ignored the issue of whether sections 

94-5-501(1) and 94-5-403, R.C.M. 1947, impermissibly shift 

the burden to the defendant to dissuade the sentencing court 

from imposing a death sentence. (See part IX of this dissent.) 

This Court ignored the issue of whether the sentencing court 

should have notified McKenzie before the sentencing hearing 

that it intended to rely on nonstatutory aggravating factors. 

(See part IX of this dissent.) Further, on a related issue, 

this Court side-stepped the issue of whether section 94-5-105, 

R.C.M. 1947 permits the weighing of aggravating factors against 

mitigating factors. (See part IX of this dissent.) 

This Court failed to directly rule on the claim that 

the death penalty is imposed so infrequently and imposed so 

arbitrarily and discriminatorily, it no longer serves any 

valid state purpose and is therefore cruel and unusual 
punishment violative of the Eighth Amendment. (See part 

IX of this dissent.) This Court further ignored a claim 

that the lapse of time between the sentence and the actual 

execution causes extreme mental agony and that no valid 

state interest is served by the death penalty, amounts to 

cruel and unusual punishment violative of the Eighth Amendment. 

(See part IX of this dissent.) And this Court ignored the 

claim that death by hanging constitutes cruel and unusual 

punishment. (See part IX of this dissent.) 

Finally, one issue demonstrates as well as any the 

quality of review we have given McKenzie. In McKenzie - I1 

and - 111, the majority held that after we decided his appeal, 

he could still have his death sentence reviewed by the 

Sentence Review Board. But then Dewey Coleman asked the 

Sentence Review Board to review his death sentence and that 

board turned him down. Coleman then asked this Court to 

compel the Sentence Review Board to review his death sentence. 

Coleman relied on the McKenzie decision for authority, but 

this Court turned him down and agreed with the Sentence Review 

Board that it had no authority to review a death sentence. 

In his appeal from the District Court's denial of 

post-conviction relief, McKenzie asked this Court to reconsider 

its McKenzie - I1 and - 111 rulings that the Sentence Review Board 

could review his death sentence. Had we ruled on this issue, 

and properly ruled, our decision would be that the Sentence 

Review Board could not review McKenzie's death sentence. 

Such a decision would mean, however, that McKenzie's death 

sentence could not stand, because the procedural safeguards 

after conviction did not contain sufficient protection to 

meet the mandates of United States Supreme Court decisions. 

In regard to these obviously inconsistent holdings in McKenzie 
and Coleman with regard to the Sentence Review Board's 

authority to review death sentences, this Court chose to 

ignore the issue. By ignoring the issue, McKenzie still 

stands sentenced to death. (See part IX of this dissent.) 

This concludes my third dissent to this Court's 

McKenzie opinion. United States Supreme Court Justices 

Marshall and Brennan have already strongly criticized this 

Court for its uneven treatment of McKenzie and for its 

failure to comply with the mandates of the United States 

Supreme Court. In fact, both Justices felt so strongly that 

McKenzie's rights had been violated that they recommended that 

McKenzie seek federal habeas corpus relief. 449 U.S. at 1056, 

101 S.Ct. at 630, 66 L.Ed.2d at 510. It is not often that 

dissenting justices of,the United States Supreme Court go so 

far as to suggest that a defendant continue to press his case 

by seeking federal habeas corpus relief. Such a recommendation 

can only arise because the dissenting justices have an 

abiding believe that this Court has utterly failed to recognize 

and protect McKenzie's constitutional rights. 

Now we can add yet another chapter to what I stated in 

McKenzie I11 which would be a fitting title for a story on 

McKenzie's appeals: The McKenzie Rules: Not For -- General 

Application--Apply Sparingly. The theme has not changed; my 

review of this appeal has convinced me beyond any doubt that 

a defendant sentenced to death in this state has no chance to 

obtain fair, adequate, and meaningful review. 

I must again allude to the statement in the majority 

opinion that in all the annals of criminal law history in 

this State, no defendant has been given more "tender legal 

care." I believe that my dissent demonstrates precisely 

the contrary. Never in the annals of criminal law history 
in this State has a defendant ever been the victim of 

such a consistent and wholesale denial of fundamental 

rights. Only a federal court can now give the fair and 

even-handed review that the Court has so consistently refused 

to give. 
Mr. Justice Frank B. Morrison, Jr., concurring: 

The purpose of this comment is to fulfill a commitment 

made to my brother, Justice Daniel J. Shea. I was to review 

his dissent at its conclusion and add my judicial blessing to 

any portions with which I could agree. The review is complete. 

My comments follow. 

Justice Shea's dissent is one of the most scholarly and 

lucid professional works I have ever read. With keen analysis 

he has laid bare the travesty known as State v. McKenzie. The 

investigation was bungled; the plea bargain was broken; the 

trial was a mockery; the sentence was predetermined; the appellate 

review was more illusory than real. 

Justice Shea sounds an alarm which rings loudly in the 

citizen ear. We must act to preserve our constitutional system 

and that action rightfully preempts any compulsion to punish, 

no matter how heinous the crime. Every citizen must receive equal 

justice before the law. There are no exceptions. In this 

case, our system of justice has been twisted, torn, and at times, 

ground asunder. 

An appellate court must vigilantly protect the structure 

from mob assault. This Court, in McKenzie, has failed miserably. 

I concur in Justice Shea's dissent. 
C. r -- 1% T!!E 1.1. <!CT C3URT OF T?E E!tHTH 23?!t!AL ?!STRICT Y FEE S??,TE 

OF !!C:ITX!iA, 12 AX!) FC!? THE COU:dTY OF CASCADE 

THE STATE OF f.:O!ITkt'IA, ) Criminal Action No. 6593A 

) 0BJECTIO;iS TO PRELI!IIEARY 

DU:iCA:i PEDE? !<c%EIiZIE, 

, 

Plaintiff herein, The State of !:ontasa, through its 

13 evidence for the following reasons: 

That sai a PRELI:<I:iARY 1iiSTRUiTIO:iS are not within the 

15: intent of Section 95-i91C, R.C.?I. 1947, ORDER OF TRIAL; and that 

16 sail P2E?i!+I!iARY 1:iITRUCTIO;iS go beyond the instructing of the 

That seid PRELI:*II:IARY 1IISTRilCTIO:IS are misl.eading and 

19: would tend to prejudice the Defendant's right to a fair trial. 

That said PRELiK16ARY 1SSTSUCTIOi;S place undue e~phasis 

21 on presur.p:ions and inferences and would tend to direct the jury to 

That said ?RELI:s!I:;ARY 1fiSTRUCTIO:IS would confuse the 

25' jury and instlll in the jureri minds facts not yet presented to the 

That said PRELIXICARY IESTRUCTIOSS include rnis-stateoents 

of the law, 2nd Pre confusing and redundant. 

That said Preliminary Instructions give no citation as 

Plaintiff specifically objects to the follo~ing numbered 

2i Preiininzry !ns:r;ctions: 

inat Fre? ir::inary Instruction refers 

APPENDIX -154- 

-- 0 
fendz~t's piea of "tiot Guilty"." As is correctly stated in 

inary instruction :lo. 6 the Court entered a plea of "Not 

" on behalf of the Defendant when he stood mute and refused to 

That pursuant to Section 95-1910(b), R.C.M. 1947, a 

ent of the case is to be made by the County Attorney. See 

S 

7: State \is. Gzll, 135 Mont. 131,337 P2d. 932. However, there appears )I 

tI 

I 

8,; to be no statutory authority for counts of the Information to be 

9" iead to the jury by the District Judge, as a part of Preliminary 8 

0: Instructions under "Statement of the Case". 

1 .: 23. Thzt the title "Deliberate Homicide by Heans of Torture" 

12 ir.correctly states the crine charged, which is "Deliberate Homicide". 

. # 

+'-+ 13 $A$- , 'ection 94-5-102. The matter of torture arises under the punish- - 

. -,. - "' e . * 2% 9 -. 

::,.-lb ' 14 , - <"2* 

z-~~z: *cnt stztute, Section 94-5-105 (1) (d). That the use of the title 

2 -* 15 : fi < c - - i 

d-.4 5- +LA % ,. 721 i berzte Honicide By Mezns of Torture" is misleading. I 2%- .%-: I s;:g.. 16 .? 

i 24. That the title "Deliberate iionicide by Means of Lying in 1 3's -1 - - *, : 

-,g * 

a,,,# 4 -:a . l7 :,it or A~btish' incorrectly states the crime charged, which is I 

~~ii~ 5, ; 18 

- *. . "liberzte Eczicide", Sectjon 94-5-102. The matter of lying in , 19 

*. :?. sit or aabusn arises under the punish~ent statute, Section 94- & .:- 

I 

I '* -l() [e). Thet the use of the title "Deliberare Homicide by 

hT . :.ans of Lying in H~it or E.nbush" is misleading. That the use of 

22 .. the terns "killing" and :'killu is improper. Such terms are not 

23,: found in any applicable statute. That the proper :ern is "causes 

24j the delth ofn, as stated in Section 94-5-101. , 1: 

25 :i 

28. That the use of the term "the killing" is improper, as 

2e stated in ;laintiff's oGj?ction to No. 24. i 

27 i 

z 29. That the statenent "All persons are of sound mind who 

a; 

f are not inszne," is not supported by legal authority. 

29 '; 

1 30. That the use of exanples of "A" and "5" involving violence, 

36 I 

I 1 injury and Stood are improper, inflanmatory,and confusing and would 

31, I 

j "inna to obsc~re or color facts ~ot yet inevidence. i 

! 

32 ; 

i 32 - 38 That the repeated restateaent of situations involving 

APPENDIX -155- 
the a1 ;e ;2:isr4s against the defendant are infiar,matory and prejudici' 

34. Sane objection as to No. 28. concerning the terms "killinc 

Nkilled" 2nd "kill". 

That such ?relininary Instructions are contrary to accepted 

practice zzd procedure and in their total effect would be 

pr?.judici! to Defendant. 

- rhat there appears to be no sound reason why such 

insirgcticns need be given in this case prior to the submission of 

evidence, juries for the centuries having been able to properly 

weigh evi.(ence without the use of such- Preliminary Instructions. 

That althouoh various of the instruction s proposed would 

2:' be :ro;?r as instructions to be submitted to the jury after the 

iJ. ;ii:e.ce has been subxitted the Plaintiff believes that it would be 

7L:, ieversible error to give such instructions prior to the subrfiission ,. 15 1 cf 2ny evidence. 

Respectfully subnitted, 

1.2. i - - \ . .' -'--J . . , ,.f-~,2,-~- 

David ki. /,elson 

Ponder2 County Attorney 

- -. -- - \ 

Douglas Anderson 

Special Prosecutor for Pondera County 

APPENDIX -156-